Can overtime be compensated by day off. Compensation for overtime work instead of increased pay for additional rest time

Problem

There are two options for overtime compensation. Subject to the second: At the request of the employee overtime work instead of increased payment   can be compensated by the provision of additional rest time, but not less than the time worked overtime. What is meant by this extra time? Are these vacation days paid for? Is the employer right to suggest taking a rest day as an overtime work as a vacation without salary?

Decision

Hello,

The Labor Code of the Russian Federation does not contain provisions obliging an employer to force an employee to take additional rest time (the Labor Code of the Russian Federation does not contain such a concept as "time off").
As you know, overtime work, on the basis of article 152 of the Labor Code of the Russian Federation, is paid for the first two hours - in the past two hours, and the next two hours. On the basis of the same article, the choice between the payment of processing in an increased amount and time off, belongs to the employee. because serhurochnaya work is compensated by the provision extra rest   precisely at the request of the employee, the employee must express this desire in writing. On the basis of the application of the employee, an order is issued for the granting of additional rest time, and not a vacation without saving s / n. In TURV, day off is indicated by the letter code "HB" or numeric "28".

The Labor Code of the Russian Federation provides for the granting of another day of rest or additional rest time in the following main cases:

Compensation of time worked overtime (Art. 152 of the Labor Code of the Russian Federation);

For work on a holiday or a non-working holiday (Art. 153 of the Labor Code of the Russian Federation);

In the case of donating blood and its components (Art. 186 of the Labor Code of the Russian Federation);

Processing of working time within the schedule of work on the watch (Art. 301 of the Labor Code of the Russian Federation).

the parties can agree on the provision of additional time of rest in advance, for example, when an employer, in an order to hire an employee to work on a day off or to work overtime, can immediately state that the employee is given a rest time afterwards (can be fixed with the employee’s consent) .

To hire an employee to work overtime requires his written consent.

If the parties have not agreed in advance on how the employee will be compensated for the processing, then the employee may write a statement asking for additional rest time, and the management must prepare a corresponding order.

In the absence of consent (written statement) of an employee to provide him with another day of rest as compensation for his work on weekends or non-working holidays   (or overtime), increased payments should be made automatically.

Decision

Hello!

This time of additional rest of Article 152 of the Labor Code of the Russian Federation has nothing to do with leave without saving the RFP.

Moreover, the leave without st. Article 128 of the Labor Code of the Russian Federation is granted for family reasons and other good reasons to the employee upon his written application. And this leave from his name is clear that these are unpaid calendar days.

And in accordance with Article 152 of the Labor Code of the Russian Federation, it is exactly the extra time of rest that is provided, but not less than the time worked overtime.

For example, so you understand. You worked overtime during the month of 8 hours, you have an 8-hour working day. And you write an application to be provided in accordance with Article 152 of the Labor Code of the Russian Federation for additional rest time on such a date, i.e. on the date of your working day, i.e. in payment for you nothing will change, this day of additional rest will not reduce pay.

As for the designation of this time in the time sheet, the designation "NV" will be not entirely accurate, since this designation is an extra weekend   days(unpaid).

But, after all, the employee should be given additional rest time, but no less than the time worked overtime, and this may be hours, and therefore, the employer will have to enter your symbol precisely when extra hours are provided for rest.

Those. again for understanding:   the very overtime   you will be paid in the usual, single amount, and the time for additional rest is not paid and as a result it turns out that the employee will not lose in remuneration.

Here is such advice that these additional holidays should be arranged in the month in which you worked overtime, then you will understand for sure that you did not lose in pay. If you take next month or in a few months, forgetting that these overtime were still paid in the usual amount, then taking a rest time in a few months, you will assume that you have lost in pay this month, in which you take it extra time off.

And another such momentthe employer must still know in advance whether there will be an overtime payment in an increased amount in accordance with Article 152 of the Labor Code of the Russian Federation, since It is the increased pay that is prioritized in this article.

And only at the request of the employee, overtime work can be replaced by an additional rest time, i.e. it is necessary immediately when you are invited to work overtime, article 99 of the Labor Code of the Russian Federation, and this is done with the written consent of the employee, i.e. statement of the employee, so that in the statement I recommend to immediately indicate that you want to give you extra time of rest instead of paying an increased amount.

Otherwise   at the end of the working month or accounting period (if it is a summarized account of working time) you will be paid exactly the increased amount, since   This is a priority requirement of Article 152 of the Labor Code of the Russian Federation.

And one moment, the law does not specify the term for which the employee must use this before the rest, often happensthat the employer declares to the employee that the calendar year is over, the employee did not use this before the time of rest, which means that it burns down.

Here the judicial practice iswhat the employee is recommended to indicate to the application immediately when he wants to use this rest time, i.e. specific dates. The law does not provide for the procedure for granting additional rest hours for overtime work, but nevertheless, it is recommended that you specify specific dates when you want to use this pre-rest time in the application for consent to work overtime.

And yet, the fact that Article 152 of the Labor Code of the Russian Federation states thatovertime instead of increased pay can   compensated by the provision of additional rest time, it still means that the provision of rest days depends on the discretion of the employeri.e. the employer may refuse, here the employer will be guided by the interests of the organization.

GenerallyThis pre-holiday time cannot be imposed on the employee by the employer, and the employee cannot demand that the employer provide this pre-holiday time.

And, for example, if you have 3 hours of rest time, and you need to get an “exemption” for the whole working day, then in this case there will be one application for the provision of 3 hours of rest and an application for leave without saving for 5 hours (or another number of working hours depends on the length of your working day (shift). And there will be two orders, because the order for the rest time is issued in non-unified form, and the order for leave without saving There is no obligation to work Odateleta use these forms), so that the order can be issued and one non-standardized form.

And employers are those who do not show overtime hours in tax accounting, i.e. they do not show the accounting for which taxes and insurance premiums are paid, these are precisely the employers and I can declare that the employee, instead of applying for the rest of time before writing, should write an application for leave without saving w. After all, how can you write an application for additional rest time for overtime work, if such work was not shown in the accounting department, and if you were paid for this time in a single amount, then it was through an envelope, i.e. "Black" accounting. You need to understand that employers are trying to reduce taxes, and therefore often do not overtime, work on weekends, work on weekends and holidays.

That is why you may be required to write an application for leave without saving the RFP, and to find out if you have been officially paid overtime hours, then look at your payable sheets, which you are required to issue for each month of Art.136 of the Labor Code of the Russian Federation.

How is overtime compensation paid if employees are employed for employment outside of labor standards established by law? Is it possible for an employer to pay for processing not money, but time off? Consider the features of accounting for such operations.

When compensation is due for overtime

The concept of working time is set out in Art. 91 TC - this is the time the employee performs his duties under the conditions employment contract   and / or internal regulations. At the same time, a 40-hour week is automatically taken as the normal duration of work. The obligation to record the time actually spent by staff is assigned to the employer.

Overtime is recognized any work performed by a specialist in excess of established standards and at the initiative of the employing company (stat. 99). If accounting is conducted by a summarized method, processing is considered the period of employment in excess of the established standards for the accounting period. Accordingly, compensation for overtime work is only due to the normalized employment of workers. If an employer occasionally calls a specialist with an irregular nature of work, such employment cannot be considered overtime, and the processing time extra charge   not subject to (stat. 97, 101 TC).

Note! To attract an employee to work outside the limits of official working time, it is necessary to issue an order of the enterprise manager or an order. And the list of the posts providing unregulated working day, affirms in local acts of the enterprise or the collective agreement. The total maximum duration of extracurricular labor is 120 hours per year or 4 hours for 2 consecutive days (stat. 99).

Overtime compensation - types of benefits

Compensation for processing under the Labor Code of the Russian Federation is provided in the form of payment of increased salaries, according to the standards of art. 152 TC:

• The minimum size of 1.5 from the usual wage is charged for the first 2 hours of employment.
• Minimum 2-size - accrued for all subsequent hours of employment. The same amount of salary is paid for extracurricular work on holidays and / or weekends.

Note! The payment procedure may be changed by the decision of the employer with an increase in the minimum amount established at the federal level. It is impossible to reduce the compensation. Also, at the request of the employee, extracurricular work can be compensated extra days   rest minimum duration of processing time (stat. 152).

Recycling Compensation - Accounting

For the correct accounting of overtime processing a report is kept with the reflection of the data for each employee individually. Additionally, you can fill in a special accounting log that opens for a calendar year. To attract workers, it is necessary to issue an order for processing in any form. Be sure to have the consent of the person. Reasons for calling an employee without consent are listed in Art. 99. It must be borne in mind that certain categories of personnel are prohibited from engaging in overtime employment. Familiarization of the order is made under the personal painting of a specialist.

Work over 40 hours a week is overtime. The law establishes additional duties for the employer to involve the employee in overtime work. The employer must properly prepare personnel documents and transfer them to the accounting department so that employees charge the appropriate compensation for overtime work.

A closed list of situations in which the employee’s consent to engaging in overtime work is not required in the cases listed in Part 3 of Art. 99 of the Labor Code of the Russian Federation.
  In some cases, involving an employee to work overtime, it is necessary to take into account the opinion of the trade union committee and only after that to issue an order.

There are workers who cannot be involved in overtime work under any conditions: pregnant women (part 5 of article 99 of the Labor Code of the Russian Federation); minors (part 5 of article 99 of the Labor Code of the Russian Federation); employees during the term of the student agreement (part 3 of article 203 of the Labor Code of the Russian Federation).

There are employees who need to be notified in writing about the right to refuse overtime work: disabled people (part 5 of article 99 of the Labor Code of the Russian Federation); women with children under the age of three years (part 5 of article 99 of the Labor Code of the Russian Federation); fathers raising children under three years old without a mother, and guardians (custodians) of children of this age (art. 264 of the Labor Code of the Russian Federation).
  Moreover, the employer must check if overtime work is not contraindicated for health reasons.

The employee can report on the chosen method of compensation with money or rest time directly on a memorandum on employment.
  It is possible that after processing the employee will want to use another time of rest. Usually in such a situation, the employee writes a corresponding statement.

For an employee, overtime is one of the ways to earn money. By law, the first two hours of processing are paid in one and a half times, followed by no less than double.

Overtime work   should be compensated. This can be done in two ways:
  1. in an increased amount. Minimum established TK RF in Art. 152 of the Labor Code of the Russian Federation. The specific amount of payment must be determined: in collective agreement; local regulatory act; employment contract.

1. Provide additional: not less than the time worked overtime.
     The way how the employee is compensated for overtime, he chooses. The employer cannot do this for him.

From October 3, 2016, for the resolution of an individual labor dispute about non-payment or incomplete payment of overtime work, an employee may apply to the court within one year. The term is calculated from the day when overtime work was to be paid.
If the work was carried out as usual, then the limitation period shall be calculated from the date of payment of salary during the period when the employee worked overtime.
  If the enterprise has kept a summarized record of working time, then the limitation period is calculated from the date of salary payment at the end of the accounting period in which the employee worked overtime.
  If the TD is terminated, then the limitation period shall be calculated from the date of dismissal, when the employee did not receive a full settlement of the amounts due to him.
  Until October 3, 2016, for employee claims, the employee has only three months from the day when he received less money due to him.

Minimum overtime rates:
  1. The first two hours you must pay in half the amount or pay 50% of the cost of working hours.
  2. The third and fourth hours you have to pay double the amount or pay 100% of the cost of working hours.
  The rules for calculating overtime are not established by law. The employer must decide for himself how the cost of an hour will be calculated and what payments will be included in overtime pay.

How to calculate the cost per hour

Paying overtime depends on the number of hours of processing, so you need to use hourly rates.
  How to calculate the cost of an hour, especially if the employee has a salary, the law does not determine.

You can use two methods:
  1. Calculate the average hourly rate.
  This should be done as recommended by the Ministry of Health of Russia (letter of the Ministry of Health of Russia dated 07/02/2014 16-4 / 2059436).
  That is, you first need to determine the average monthly number of working hours. For this, the annual rate of working time in hours is divided by 12 (the number of months in a year).
  Then the hourly rate is calculated: the salary (monthly rate) of the employee is divided by the average monthly number of working hours. With this method of calculating the cost of an hour of overtime during the year does not change, because it does not depend on the month.
  This is convenient if overtime hours are calculated at the end of the accounting period, and the employee is assigned a cumulative working time record.
  2. Calculated hourly rate.
  The salary (monthly rate) of the employee is divided by the number of working hours in the month according to the production calendar. With this method of calculating overtime during the year are paid differently.

If the employee receives only a salary, all calculations are based on this amount.
The list of payments that will be included in the calculation of overtime hours is determined if the employer has established supplementary payments of a compensatory nature and an incentive surcharge. After the employer decides whether to include them in the calculation or not, this should be fixed in a local act.

Option 1. The overtime hours include salary, permanent supplements and allowances.
  This method of calculation is beneficial to the employee. The cost of an hour in this case is higher than with option 2.
  Option 2. The payment of overtime hours includes only salary, co-payments and surcharges are not taken into account.
  This method of calculating the law does not contradict, but less profitable for the employee.

The exclusion from the calculation of overtime any extra charges and compensations does not contradict the law. Courts recognize this method as correct. But if the employer provides incentive and compensation payments, not taking them into account when paying for overtime will lead to negative consequences. For example, the payment of processing will be less than for work within the normal time. Employees will refuse to work overtime in cases where the law gives them the right to choose.
  How to pay for the "overmouse".
  For employees with a summarized account of working time, the fact of processing can be established only after the end of the accounting period. Therefore, overtime payment is also made according to the results of the period (letter of the Ministry of Health and Social Development of Russia dated August 31, 2009 22-2-3363). Exception: overtime work must be paid if the employee leaves before the end of the accounting period.
  The question of how to pay the "overmouse" in the case of the summarized accounting of working time is perhaps the most difficult. The discussion on this topic continues from the moment of adoption Labor Code. Which of the two available positions to take is up to the employer.

Thus, the total number of overtime hours for the reference period is divided by the number of working days (shifts), regardless of the number of hours in a shift. If the received value is less than two, all hours are paid in half size. If more than the first two hours of the working day (shift) are paid in the half rate, the next in double.

How to pay for overtime on holidays, weekends or at night

When calculating overtime hours work on weekends or non-working holidays, which is produced in excess of the working hours, are not taken into account. The work has already been paid for in double size (paragraph 4 of clarification 13 / p-21, approved by the decree of the USSR State Labor Committee, Presidium of the All-Union Central Council of Trade Unions of August 08, 1966 465 / P-21).
The Supreme Court of the Russian Federation recognized that this clarification does not contradict the Labor Code of the Russian Federation

Hours that the employee has worked on weekends and non-working holidays in excess of the prescribed length of time are considered hours worked on rest days. These hours are not overtime hours.
  If an employee performs overtime at night (from 10:00 pm to 6:00 am), increased charges for nighttime and overtime are made independently of each other.