Irregular working hours involve working outside working hours. As a rule, they are warned that work will be carried out in this mode before employment. Indeed, there are positions in which it is not always possible to distribute the workload evenly throughout the working day. Unfortunately, the norms of the Labor Code still do not clearly define the procedure for such work, which leads to mistakes and sometimes abuse on the part of employers. To ensure that there are as few errors as possible, you need to understand some nuances.

Working conditions during irregular working hours

By virtue of Art. 97 of the Labor Code of the Russian Federation, the employer has the right, in the manner prescribed by the Labor Code, to involve an employee in work beyond the working hours established for this employee in accordance with the Labor Code of the Russian Federation, others federal laws and other regulatory legal acts of the Russian Federation, collective agreements, agreements, local regulations, employment contracts:

for overtime work (Article 99 of the Labor Code of the Russian Federation);

if the employee works on irregular working hours (Article 101 of the Labor Code of the Russian Federation).

According to Art. 101 of the Labor Code of the Russian Federation is a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions with irregular working hours is established by a collective agreement, agreements or local normative act adopted taking into account the opinion of the representative body of workers.

Based on this formulation, the following mandatory conditions for working in irregular working hours can be identified:

1. The list of positions requiring work in this mode is established by a collective agreement, agreements or local regulations.

2. Such work is carried out by order of the employer.

3. Such work is carried out sporadically.

In addition, in accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, the condition for irregular working hours is fixed in the employment contract with the employee.

Note: if a regime of irregular working hours is introduced after concluding an employment contract with an employee, he is first notified of this no later than two months in advance, then a contract is concluded additional agreement to the employment contract on changing the working hours, and on the basis of the agreement an order is issued. Such changes are made by agreement of the parties (Article 72 of the Labor Code of the Russian Federation) or by the employer unilaterally (Article 74 of the Labor Code of the Russian Federation).

Who can work irregular hours?

The employer has the right to determine the list of positions with irregular working hours independently, fixing it in a collective agreement, agreement, or local regulatory act, which is adopted taking into account the opinion of the representative body of employees.

the list of positions for FSS employees with irregular working hours was approved by Order of the FSS of the Russian Federation dated June 22, 2009 No. 146;

list of positions of system employees Pension Fund with irregular working hours - Resolution of the Board of the Pension Fund of the Russian Federation dated November 1, 2007 No. 274p.

These lists include quite a lot of positions - management, specialists, and service personnel.

According to Decree of the Government of the Russian Federation dated December 11, 2002 No. 884 (hereinafter referred to as Decree No. 884), the list of positions of employees with irregular working hours of federal government institutions includes management, technical and economic personnel and other persons whose work during the working day cannot be accurately recorded, persons who distribute work time at their own discretion, as well as persons whose working time, due to the nature of the work, is divided into parts of indefinite duration. A specific list of positions for such employees is established by the internal labor regulations or other regulatory act of the institution. If these regulations are absent, the employer independently adopts a local act and establishes a list of positions with irregular working hours at its own discretion and with the consent of the trade union.

There are no restrictions on the positions that may be included in the list. As for the status of workers occupying these positions, not everything is simple: not everyone can establish irregular working hours. Despite the fact that there is no special prohibition in the Labor Code, there are other rules, in particular, regulating the second type of work outside the working hours - overtime work. You cannot attract him:

pregnant women (Article 259 of the Labor Code of the Russian Federation);

workers under the age of 18 (Article 99 of the Labor Code of the Russian Federation);

workers during the apprenticeship period (Article 203 of the Labor Code of the Russian Federation).

Disabled people, women who have children under three years of age, fathers raising children without a mother, guardians (trustees) of minors are allowed to work overtime only with their written consent, having been informed of their right to refuse such work (Article 99, 259 of the Labor Code of the Russian Federation).

There is an opinion that it is impossible to establish irregular working hours for employees who have reduced working hours (disabled people, minors, working in harmful and (or) dangerous conditions, etc.). Some judges share this opinion. In particular, the judges of three instances, when considering the case, concluded that a disabled employee who has been assigned reduced working hours cannot be assigned an irregular working day, regardless of the employee’s consent or disagreement (Cassation ruling of the Moscow City Court dated October 23, 2015 No. 4g/ 2-10554/2015).

At the same time, it should be noted that involving disabled workers in overtime work with their written consent labor legislation does not prohibit.

Officials of the Ministry of Labor, in turn, answering the question about the establishment of irregular working hours for workers in harmful and (or) dangerous conditions, said: since the establishment of reduced working hours is a guarantee for persons employed in work with harmful and (or) dangerous working conditions , if an irregular working day is established for this category of workers, the said guarantee actually loses its purpose - reduction negative impact per person harmful working conditions. Accordingly, an irregular working day can be established for such employees only if they are not given a reduced working time.

Despite the above, we believe that since there is no direct prohibition on establishing irregular working hours for employees with reduced working hours, in some cases (with the written consent of the employees) irregular working hours can be established, in particular, for the same disabled employee. Perhaps the legislator will eliminate this gap, as he eliminated it for people who work part-time. Now part 2 art. 101 of the Labor Code of the Russian Federation clearly establishes that for those working part-time, an irregular working day can be established only if the agreement of the parties to the employment contract provides for a part-time working week, but with a full working day (shift).

Question:

Can a part-time worker have an irregular working day?

Answer:

Here it is worth noting the opinion of some experts, based on the fact that part-time work, by force of law, is part-time work. Based on this, a part-time worker by virtue of Part 2 of Art. 101 of the Labor Code of the Russian Federation can work in irregular working hours only if the agreement of the parties to the employment contract establishes a part-time working week with a full working day.

We cannot agree with this position. According to the norm of Part 1 of Art. 284 of the Labor Code of the Russian Federation, the duration of working hours when working part-time should not exceed four hours a day. On days when the employee is free from performing work duties at his main place of work, he can work part-time full time (shift). During a month (another accounting period), the duration of working time when working part-time should not exceed half of the monthly standard working time (standard working time for another accounting period) established for the corresponding category of employees.

However, part-time work is not part-time work.

Therefore, we believe that since there is no prohibition on part-time work during irregular working hours in the Labor Code, it can be established for such employees as well. And the compensation provided for work in the appropriate mode must be provided to them in full, as well as to the main employees (Part 2 of Article 287 of the Labor Code of the Russian Federation).

Working hours during irregular hours

Let us remind you that, by virtue of Art. 101 of the Labor Code of the Russian Federation, if an irregular working day is established, the employee works outside normal working hours on the basis of the employer’s order and periodically.

And here two questions arise at once, which at the moment remain open:

1. In what form should the order be issued?

2. What does “occasionally” mean?

To answer the first question, let us turn to the Labor Code, which often uses the term “instruction” along with the name “order”. For example, according to Part 6 of Art. 193 of the Labor Code of the Russian Federation, the order (instruction) of the employer to apply a disciplinary sanction is announced to the employee against signature. That is, both an order and a directive are understood as a written act issued by the employer in the person of the head of the organization.

However, unlike an order, a directive - despite the fact that it also has the nature of a legal act - can have both written and oral form and be issued not only by the head of the organization, but also by the heads of structural divisions within their competence. Within the meaning of Part 1 of Art. 101 of the Labor Code of the Russian Federation, the written form of the order is not implied; accordingly, it can be given orally. And in practice, since the written consent of the employee for each engagement in work beyond the normal working hours is not necessary, it is easier to give oral instructions.

But we note: by issuing written orders, the employer will be able to subsequently confirm that he did not abuse his right and involved employees in such work periodically, and not constantly. In addition, he will be able, having written evidence in hand, to bring the employee to disciplinary liability if he refuses to work beyond the norm.

In any case, an order made orally does not entail a violation of the procedure for working on irregular working hours.

Unlike the form of the order, the second question is of fundamental importance and if it is determined that the employee constantly overworks, the employer may be required to pay for such work as overtime.

To involve an employee occasionally means irregularly, not constantly, from time to time, from case to case. Of course, special certainty this characteristic does not contribute. Moreover, it has not been established maximum amount hours of work above normal. The absence of clear restrictions (as with overtime work) in practice leads to an unreasonable expansion of the scope of application of irregular working hours and, ultimately, to abuse of rights by employers.

Note: the obligation to keep records of hours worked in excess of the norm is not established by law (such work does not apply to overtime). However, since Part 4 of Art. 91 of the Labor Code of the Russian Federation obliges the employer to keep records of the time actually worked by each employee; it is better to keep records of overtime, including in order to confirm its episodic nature. You just need to do this in a separate journal, and not in a time sheet, so that it is not considered overtime.

During irregular working hours, employees are required to comply with internal labor regulations. And as noted in the Letter of Rostrud dated 06/07/2008 No. 1316-6-1, the introduction of such a regime for workers does not mean that they are not subject to the rules determining the start and end times of work, the procedure for recording working hours, etc.

Compensation for irregular work

In accordance with Art. 116 of the Labor Code of the Russian Federation, an employee working on irregular working hours must be provided with additional annual paid leave. The specific duration of such leave is determined by collective agreements or local regulations, which are adopted taking into account the opinion of the elected body of the primary trade union organization. At the same time, the minimum duration of additional paid leave is three calendar days (Article 119 of the Labor Code of the Russian Federation).

Note: Rules for granting annual additional paid leave to employees with irregular working hours in federal government institutions approved by Resolution No. 884 (hereinafter referred to as the Rules).

According to the Rules, the duration of additional leave for relevant positions is established by the internal labor regulations of the institution and depends on the volume of work, the degree of labor intensity, the employee’s ability to perform his job functions outside of normal working hours and other conditions. In this case, the employee has the right to additional leave regardless of the duration of work under irregular working hours.

Additional leave provided to employees with irregular working hours is summed up with the annual basic paid leave (including extended leave), as well as other annual additional paid leave.

In case of transfer or non-use of additional leave, dismissal, the right to the specified leave is exercised in the manner established by the labor legislation of the Russian Federation for annual paid leave.

There is no provision for the provision of additional leave for irregular working hours in proportion to the time worked in the working year for other employees (not working in federal government institutions). This is indicated in the Letter of Rostrud dated May 24, 2012 No. PG/3841-6-1.

In accordance with Art. 126 of the Labor Code of the Russian Federation, an employee has the right to refuse to use additional leave. In this case, such leave may be replaced by monetary compensation.

Note: additional leave is provided to the employee, even if there was no overtime. In this regard, if the employer does not keep track of overtime hours, this should not affect the provision of leave and is not a violation.

Irregular working hours and overtime

Although both irregular working hours and overtime mean working beyond established norm, these are completely different concepts. Moreover, the regime of irregular working hours is, of course, more profitable for employers. Sometimes this leads to overtime work being formally replaced by irregular working hours. To show the difference between overtime and irregular hours, let's present a table.

Characteristic	Irregular working hours (Article 101 of the Labor Code of the Russian Federation)	Overtime work (Article 99 of the Labor Code of the Russian Federation)
Who is involved in this work?	Employees whose position is included in a special list of positions, which can be established by a collective agreement or local regulation. By analogy with overtime work, exceptions include pregnant women, minors, and employees during the apprenticeship period.	Any employees, with the exception of preferential categories (pregnant women, minors, persons undergoing training in an organization under an apprenticeship contract, etc.). Involvement of disabled people and women with children under three years of age in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons
Registration of attraction	A local regulatory act establishing the rules for hiring, the duration of leave, and a list of positions for employees with irregular working hours. An employment contract or additional agreement with the condition of such a regime and the duration of leave	Notifying the employer about engaging in overtime work. In certain cases, the consent of the employee, in some cases together with the consent of the trade union. Order from the manager to hire him to work, indicating the number of overtime hours of work
Duration of work	There are no restrictions on the number of overtime hours. At the same time, it is necessary to involve in the work regime not regularly, but only when necessary and occasionally	The duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year
Accounting for overtime hours worked	There is no obligation to keep records of processing, but it can be noted in a separate report card or journal	It is necessary to keep accurate records of the duration of overtime for each employee, using the code “C” or “04” in the time sheet.
Overtime compensation	Additional paid leave, which cannot be less than three calendar days. The specific duration is established by a collective agreement or internal labor regulations and does not depend on whether there was overtime or not. Vacation may be replaced by monetary compensation by agreement between the employer and employee	Overtime pay: – for the first two hours – no less than one and a half times the amount; – for the following hours – no less than double the amount. Specific amounts of payment can be established in collective or employment agreements or in local regulations. At the request of the employee, instead of increased pay, overtime work can be compensated for by additional rest time

Question:

Can an employee with irregular working hours be required to work overtime?

Answer:

If the employer understands that the need to work beyond normal working hours occurs more often than occasionally, the employee may be required to work overtime. Despite the fact that in practice such a combination is rare, the Labor Code does not establish any prohibition. Just do this on different days.

The judges do not find anything illegal in such a decision (Appeal ruling of the Trans-Baikal Regional Court dated October 16, 2012 in case No. 33-3284-2012).

To summarize, we note once again features irregular working hours:

1. This regime is established only for employees included in the list of positions determined by the collective agreement, agreements or local regulations.

2. The conditions for irregular working hours and the duration of additional leave must be established by the employment contract or an additional agreement to it.

3. An employee is involved in such work if necessary and occasionally.

In addition, remember that it is impossible not to provide additional leave if there were no overtime hours, to provide leave of less than three calendar days, and to establish an irregular day for part-time work.

The employer should also take into account that involving the employee regularly and systematically in performing official duties in excess of the established normal working hours may be recognized as overtime work, but only in court. And then the employee will be given additional leave and the employer will be obliged to pay for work above the norm as overtime.

To avoid disputes, it is better to establish in a local act a provision regarding in which cases the involvement in additional work is considered occasional within the framework of an irregular working day. If overtime becomes permanent, the employee can be involved in overtime work with his consent.

Many workers mistakenly believe that if they are constantly late at work and their working day does not have a clear schedule, then it can be called irregular. In meaning, it is possible, but by law it will be considered as such if a corresponding entry is made in the employee’s employment contract, and along with it there will be additional social guarantees provided to employees with official irregular hours. Let’s figure out what an irregular worker means in 2019 according to the Labor Code of the Russian Federation. Changes and latest news are further in the article.

Flexible work schedules, overtime work, as well as banal overtime at the will or whim of the employer have little in common with irregular work hours. In accordance with Art. 101 of the Labor Code of the Russian Federation, which contains the corresponding concept, irregular working hours are a special mode of work when an employee remains to work after working day not constantly, as is often practiced in Russian enterprises, and occasionally at the verbal command of the employer. Not any employee can be left “after work”, but only one who occupies a position that, in accordance with the collective agreement or other regulatory act of the employer, is included in the list of positions with irregular working hours.

Flexible hours, long hours, overtime - what's the difference?

As mentioned above, many mistakenly mistake a flexible schedule for an irregular working day, when an employee works the working hours established by the employment contract without a fixed start and finish of the working day, which are determined by mutual agreement (Article 102 of the Labor Code of the Russian Federation). However, these are completely different things. Unlike a flexible work schedule, which is also fixed in the employment contract or an additional agreement to it, irregular working hours have clear boundaries. If the TD states that the employee must start work at 10:00, then he cannot come to work at 12:00, since he has a position with an irregular work day. He must arrive at 10:00, otherwise he risks getting disciplinary action: remark or reprimand from superiors (Article 192 of the Labor Code of the Russian Federation). And for being late by 4 hours or more you can even get fired.

Thus, irregular working hours, unlike a flexible schedule, have clear boundaries, but they can be “extended” at the verbal request of the employer. Such requests may be sporadic. The employee's consent to work beyond normal working hours is not required, nor is additional payment required.

The difference between irregular working hours and overtime lies in the payment and the need to obtain the employee’s consent for overtime. Let's take a closer look at the difference.
Irregular working hours:

does not require a person’s consent to engage him in work outside of working hours;
not formalized by order (an oral order from superiors is sufficient);
payment for irregular working hours is not due;
the number of occasional exits “after work” is not regulated;
employees are entitled to leave for irregular working hours - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three additional days vacation. Naturally, paid. The employment or collective agreement may stipulate more. The days are required to be provided even if the employer did not exercise his right to occasionally involve the employee in work duties outside of normal hours during the year.

Overtime in 2019:

requires the mandatory consent of the employee, excluding emergency cases;
executed by a written order from the employer;
the duration of overtime work cannot exceed 4 hours for 2 consecutive days and 120 hours per year;
paid at least one and a half times the amount for the first 2 hours and at least
twice in the following hours;
Additional leave is not allowed.

As can be seen from the comparison, according to vacation, additional days are awarded for irregular working hours, but not for overtime work. The opposite situation occurs with additional payment, which is made only for overtime work.

How is an irregular working day formalized in 2019?

If an employee periodically performs work duties outside of established working hours, this must be reflected in his employment contract (Article 100 of the Labor Code of the Russian Federation). Corresponding notes are also included in the rules. internal regulations not an enterprise where a regulation on irregular working hours should be issued. An employee whose work duties extend over a standard 8-hour working day or over a 10-12 hour work shift should not neglect official assignment irregular days. After all, in addition to praise from management, it also guarantees the employee additional leave for irregular working hours. This should also be written about in the contract with the employee.

How many hours can you overwork?

Lawyers are often asked the question: “An irregular working day is how many hours?” The Labor Code does not regulate the hours of irregular working hours and does not decipher how many total hours an employer can involve an employee in irregular work. However, if the employer is too zealous in its right to involve the employee in performing duties beyond the normal working hours (does this not occasionally, but on an ongoing basis), then this can be recognized as overtime work and “knock out” the due compensation. To do this, you will have to contact the state labor inspectorate and the court. There are such cases in judicial practice.

We hope that after reading this article about long working hours: “What does this mean?” – you won’t ask anymore.

Rostrud explained in detail what an irregular working day is and how it should be compensated in accordance with the current version of the Labor Code.
As stated in Letter No. 1316-6-1 dated 06/07/2008, with irregular working hours, employees may be involved in work beyond the established working hours, not systematically, but from time to time and in certain cases.
This mode means that the employee can perform labor functions both before the start of the working day (shift) and after its end. However, working on weekly rest days and holidays he doesn't have to. And in the event that the category of employees in question is called to work on weekends and non-working holidays, the organization must comply with the general rules provided for in Art. Art. 113 and 153 of the Labor Code.
Rostrud also recalled that current edition The Labor Code does not recognize overtime during irregular working hours as overtime work (as was the case in the previous edition). Therefore, such work is compensated only by additional vacation. Its duration is determined in the collective agreement or internal labor regulations and cannot be less than three calendar days.

"Russian Tax Courier", 2008, N 17

MYTH ABOUT LONG WORKING DAYS

Irregular working hours are a rather “ancient” Soviet invention. In reference legal systems you can easily find regulations establishing rules for working in conditions of irregular working hours, which were adopted back in the 20s of the last century. For example, the Resolution of the People's Commissariat of Labor of the USSR dated February 13, 1928 N 106 “On workers with irregular working hours” has not yet been canceled. However, this regime has not lost its relevance: in many employment contracts you can read: “The employee is given an irregular working day.”

The main feature of an irregular working day is the right of the employer to require the employee to stay late after the end of the working day to perform urgent work. At the same time, neither the frequency nor the duration of urgent work is regulated by labor legislation, which, of course, plays into the hands of employers. Although an employee with irregular working hours works in excess of the standard working hours established for him, that is, in most cases beyond 40 hours a week, he does not receive any additional payment or payment for these working hours.

Russians have long been accustomed to the fact that overtime beyond normal working hours for workers with irregular working hours is not overtime and is not subject to increased pay. They got so used to it that they didn’t even notice how the last norm, which gave at least some basis for such a statement, was canceled.

However, this happened not so long ago - October 6, 2006. On this day, Federal Law No. 90-FZ of June 30, 2006 “On amendments to the Labor Code of the Russian Federation, declaring certain normative legal acts not valid on the territory of the Russian Federation” came into force USSR and some legislative acts (provisions of legislative acts) of the Russian Federation that have lost force."
In principle, even before the adoption of Law N 90-FZ, there were no direct indications in the Labor Code of the Russian Federation that overtime during irregular working hours is not overtime work and is not paid either at the usual or at an increased rate. This provision was also absent from the Labor Code of the Russian Federation, which was in force until February 1, 2002.

In the Labor Code of the Russian Federation, only one article mentioned irregular working hours - Article 68, which established the grounds for granting additional leaves. Its clause 3 obligated employers to provide additional leave to employees with irregular working hours. Paragraph 5 of the aforementioned Decree of the People's Commissariat of the USSR No. 106, which was in force both at that time and now, states that workers who have an irregular working day, like all other workers, are exempt from work on weekends and holidays. Work on such days is paid to employees with irregular working hours according to the general rules.

According to Art. 101 of the Labor Code of the Russian Federation, as amended, in force until October 6, 2006, an irregular working day recognized a special work schedule, according to which individual employees could, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours. At the same time Art. 99 of the Labor Code of the Russian Federation defined overtime work as work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours during the accounting period.

As you can see, working with irregular working hours fully fit into the concept of overtime work, since the normal working hours are the working hours established for the employee.
However, Art. 119 of the Labor Code of the Russian Federation, which regulates the provision of additional leave to employees with irregular working hours, provided that in the event of non-provision of leave, overtime in excess of normal working hours with the written consent of the employee is compensated as overtime work. It is thanks to Art. 119 of the Labor Code of the Russian Federation, overtime during irregular working hours was not paid as overtime work. If an additional payment should be made when vacation is not provided, then its timely provision frees the employer from the need to pay for overtime during irregular working hours.

All experts commenting on Art. 119 of the Labor Code of the Russian Federation, they agreed that in case of irregular working hours, overtime in excess of normal working hours is generally compensated by the provision of additional leave. The employer's obligation to pay for overtime as overtime arises only if additional leave is not actually provided and the employee has written a corresponding statement.

Thus, Art. 119 of the Labor Code of the Russian Federation, although indirectly, gave employers the right not to pay for overtime during irregular working hours. However, on October 6, 2006, Law No. 90-FZ came into force, which set out this article in a new edition. The proposal to pay overtime for overtime work during irregular working hours in the event of non-provision of leave disappeared from its text. Now Art. 119 of the Labor Code of the Russian Federation simply indicates the need to provide employees with additional paid leave, which establishes irregular working hours. A Art. Art. 101 and 99 of the Labor Code of the Russian Federation are consistent with each other. Now they are talking about work outside the established working hours for the employee. Compare:
“An irregular working day is a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the established working hours” (Article 101 of the Labor Code of the Russian Federation as amended by Law No. 90-FZ ); and “Overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period" (Article 99 of the Labor Code of the Russian Federation in edition of Law N 90-FZ).

It turns out that overtime during irregular working hours is the same as overtime work. Neither Art. 99, nor Art. 101 of the Labor Code of the Russian Federation does not establish any specific features of overtime work for workers with irregular working hours. Article 119 of the Labor Code of the Russian Federation no longer mentions payment for overtime as overtime only in the case of failure to provide additional leave. Why is it still considered correct not to pay for overtime during irregular working hours, but to compensate for it by providing vacation?
Article 152 of the Labor Code of the Russian Federation obliges employers to pay for any overtime work at an increased rate, including work outside the established working hours during irregular working hours.

The provision on irregular working hours contained in employees’ employment contracts must be understood as the right of employers to involve employees in overtime work without complying with the procedures established by Art. 99 Labor Code of the Russian Federation. Involving workers with irregular working hours to work outside the working hours established for them does not require obtaining their written consent or the consent of the body of the trade union organization. Work outside the established working hours, as in the cases listed in parts 2 and 3 of Art. 99, and in all other cases it is carried out only on the basis of an order from the employer, if the employee is assigned an irregular working day.

The inability to refuse to perform work outside the established working hours and the associated inconveniences are compensated by the provision of additional leave of at least 3 calendar days. But the employee’s work itself is subject to payment, and payment at an increased rate, as it is performed under conditions deviating from normal ones.

In general, an employee receives wages for all the time he or she works. If any of these hours are overtime, they will be paid at an increased rate. In addition, all time worked is included in the length of service, which gives the right to annual leave, which is provided to each employee. Meanwhile, an employee with irregular working hours is “traditionally” deprived of money for overtime. Not only does he not receive additional pay for working under conditions that deviate from normal, he does not receive any remuneration for this work at all - only vacation. This state of affairs seems unfair.

The problem under consideration cannot be solved without the participation of the courts. Only a court can give a correct interpretation of the norms of labor legislation regulating the issues of payment for overtime during irregular working hours. The legislator, it seems, has already spoken.
I. Aleksandrov - Lawyer of the Center for Legal and Economic Consultations / "EZh-Lawyer", 2007, N 35

Articles in this section

Unused vacations: risks and options for resolving the issue
As you know, in accordance with the Labor Code of the Russian Federation, each company is obliged to draw up a vacation schedule at least 2 weeks before the new year. For HR services this is a complex project; it is necessary not only to agree on a plan for next year,…
From the ball to the ship is easy. How to return to work after vacation
There is a belief among office workers: if, after returning from vacation, you cannot remember the password for your work email, it means you had a good rest. A person quickly gets used to a relaxed vacation state, and the first days at work...
Additional day off from the company
The introduction of an additional day off in a company is possible subject to its payment, since it deprives employees of the opportunity to work on a day that is not legally a non-working holiday or day off. By order of order, change the places of work and day off...
Filling out sick leave by employer
To assign and pay benefits for temporary disability, pregnancy and childbirth, the employee presents a certificate of incapacity for work issued by a medical organization, which the employer must be able to fill out correctly, because errors when filling out a sick leave certificate may lead to a refusal to reimburse the benefit.
Does unused vacation expire?
The question of whether it “burns out” unused vacation, if you don’t take it off, it remains open. While officials assure workers that unused vacations will not “burn out,” courts in some regions refuse to recover compensation for unused vacations for citizens who have just quit their jobs due to missing the deadline for filing a lawsuit.
Compensation for unused vacation and travel to vacation destinations: controversial issues
Let's look at the top 3 controversial issues regarding compensation for unused vacation and compensation for travel to and from a vacation destination. Upon dismissal, is the employer required to pay compensation for all unused vacations? Is it possible to replace unused vacation with monetary compensation...
Holiday to care for the child. We deal with hot questions of young mothers
The birth of a child and its subsequent care is an exciting event in the life of every woman. In addition to the mass of hassle associated with caring for the child himself, of course, questions arise about how to build a relationship with the employer during the vacation period. Veronika Shatrova, labor law expert, director and Chief Editor"Systems Personnel", answered a number of burning questions from young mothers and shared useful tips on the issue of registration of parental leave.
Vacation schedule in questions and answers
The law requires the document to be approved no later than two weeks before the start of the new calendar year. That is, until December 17th. Both employees and employers are required to follow the approved vacation schedule. Therefore, both of them...
Staffing and vacation schedule
The staffing table and vacation schedule are perhaps the most problematic personnel documents. On the one hand, it is impossible to live without them, on the other hand, when designing them, a lot of typical errors arise.
Time sheet
Data on the working time of each employee is needed to correctly calculate his average earnings. Therefore, the employer is obliged to keep records of working hours, regardless of the remuneration system used.
Remote work for a pregnant woman
Due to her pregnancy, an employee wrote a statement about the possibility of transferring her to remote work. Design sick leave She does not plan maternity leave or parental leave. If a number of conditions are met, the employee can continue her work.
We transfer employees to a flexible work schedule. How to do this so that they don’t work less and worse
"This month two best employee submitted their resignations!” – the head of the marketing service told the HR director. The HR department found out why employees were leaving. They are required to arrive at work by 9.30 and are punished for being late, but they often stay late into the night. People have found jobs with more flexible hours. The HR director suggested that the general director introduce such a schedule for employees of some departments. He said, “Let's try it. But the numbers shouldn’t go down!”
We establish a flexible work schedule
When establishing a flexible working time schedule, it is necessary to correctly design personnel documents. Exactly what documents should be drawn up depends on whether the employee is initially accepted on a flexible schedule or whether it is introduced for the “old” employee.
Challenges when retiring
Retirement is a fairly simple and well-known procedure. But this is only at first glance. Does a pensioner need to work for two weeks upon dismissal? Is it possible to retire twice and what should be written in the work book? Let's try to understand these issues.
Working time tracking. Time sheet
Based on materials from the reference book “Salaries and other payments to employees” edited by V. Vereshchaki (http://go.garant.ru/zarplata/) According to Article 91 of the Labor Code, “the employer is obliged to keep records of the time actually worked by each employee.” Until January 1, 2013 for accounting...
What time of work will be considered part-time?
Answer: Working time is the time during which the employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods that are classified as working time by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts.
The nuances of granting leave without pay
Quite often, employees turn to the head of the institution with a request for leave “at their own expense.” Workers among themselves call such leave administrative, but in labor legislation it is called leave without pay. wages. Is management always obliged to provide such leave to an employee, are there any restrictions on its duration, is it possible to recall an employee from it, and how does this leave affect the length of service required to provide annual paid leave - we will tell you in this article.
Questions arising when establishing part-time work
By agreement between the employee and the employer, an employment contract may establish part-time working hours, namely a part-time working day or a part-time working week (Article 93 of the Labor Code of the Russian Federation). In this article we will consider the most interesting court decisions in disputes regarding the establishment of part-time work and payment for work in the specified mode.
Employee recall from vacation
Often, due to operational necessity, employees are recalled from annual paid leave. Is such an action of the administration legal? Who should not be recalled from vacation? How to complete this procedure? You will find answers to these and other questions in the article.
What is the duration of annual paid leave at 0.5 employee rate
Should our organization provide a part-time worker with annual paid leave of 28 calendar days, since he works at only 0.5 times the rate?
Leave without pay. Cheat sheet for personnel officers
It is difficult to imagine an organization in which the employer has never encountered an employee’s desire to take leave at his own expense (leave without pay). In most cases, we are talking about vacations that are provided at the request of the employee and at the discretion of the employer. But in certain situations and for certain categories of employees, current legislation establishes the employer’s obligation to provide leave without pay.
Is administrative leave allowed?
During economic downturns, furloughing workers has become a common way to reduce labor costs. In the article we will discuss the legality of its use. According to the International Labor Organization, due to the deepening…
Vouchers at the expense of the Social Insurance Fund of the Russian Federation
In some cases, rest or treatment can be paid for at the expense of the Social Insurance Fund of the Russian Federation.
Downtime - work in the organization is temporarily suspended
Management may decide to temporarily suspend work in the organization. The reasons are different: equipment breakdown, interruptions in the supply of raw materials, accident or natural disaster. But even in such a situation, the company is obliged to keep records and submit tax and accounting reports.
Working during parental leave: clarifying the situation
The Labor Code legislates for a solution to a problem that often occurs in life. The child's mother or other persons entitled to parental leave in some cases have the opportunity to work from home or work part-time. And they want to realize this opportunity. There are many reasons for this: additional financial support for the family is needed, you need to constantly improve your skills, and simply, you don’t want to be away from the team for a long time. Let's look at how this is implemented in labor legislation.

The relationship between an employee and an employer - an individual entrepreneur - has its own characteristics.
"Reduction" of working hours
Today, a popular “anti-crisis” measure is the so-called reduction in working hours. The purpose of this measure in practice is one - to reduce wages. At the same time, the term “reduction of working hours” is understood in an economic sense, and not in a legal one, which sometimes leads to legal consequences that are completely unexpected for employers...
Time sheet
Filling rules and document templates in Excel format (with and without formulas).
Part-time work: correcting violations
IN current conditions Transferring employees to part-time work is practiced by companies quite often*. However, the procedure for establishing part-time employment from the point of view of the law is not always carried out flawlessly. Let's look at the most problematic situations related to changing the operating mode, which were reported by our readers. We will analyze the errors inherent in these situations and show you how to correct them.

Many will probably agree that holidays are a very subjective matter. In addition to the holidays mentioned in the calendar - “March 8”, “ New Year" etc. There are days that people, for one reason or another, also consider a holiday.
Types of working time
Normal working hours and reduced working hours are established by the Labor Code and other laws, while part-time working hours are established by agreement between the employee and the employer.
Length of working day (shift)
A working day is the legal time of day spent on work. The duration of work during the day, the moment of its beginning and end, breaks are established by the labor regulations, and for shift work– also shift schedules.
Working hours - what is it?
Working time is the time during which an employee, under the terms of an employment contract, must perform his job duties, as well as some other periods of time that the legislation of the Russian Federation classifies as working time.

In the practice of using irregular working hours, there are a number of persistent misconceptions, which often lead to disputes between managers and subordinates and complaints from inspection bodies. Let’s debunk them by calling on the law and established judicial practice for help. We will also pay attention to the rules for drawing up documents in controversial situations.

Error 1: if the employee “hasn’t worked too hard,” he is not given additional permission

When hiring employees, some employers, “just in case,” stipulate in the employment contracts with everyone a condition regarding irregular working hours. Their calculation is clear: suddenly they have to detain some employee beyond normal working hours - with the wording about irregular working hours in the documents, he, as they say, will not get away with it, and he will not be able to demand “overtime” for overtime. That’s how it is, only... Managers usually believe that if a particular employee has not actually worked overtime during the year, then there is no reason to provide him with additional leave. And they are wrong. Including regarding their benefits from the uncontrolled establishment of irregularity.

Firstly, non-standardization is a concept derived from normalization. Those. As a general rule, employees of an enterprise must have normal working hours, and irregular working hours can only be for certain positions (see Article 101 of the Labor Code of the Russian Federation).

Moreover, we should not forget that according to the same Labor Code of the Russian Federation, the employer is responsible for ensuring labor protection and safe working conditions for each employee in the workplace. Therefore, the more time an employee spends uncontrollably outside the established working hours at work, the more likely the employer will have to respond in the event that “something happens” to the employee. Thus, many large industrial enterprises (and even more Western companies) are very sensitive to unplanned overtime of their employees, especially if the latter have a tendency to do their own, and not production, business at work during non-working hours. And the point, as you probably already understood, is not only to hedge against demands for overtime pay. Therefore, in practice, along with a clear fixation of the establishment of irregular working hours for individual employees of the company, it is advisable to establish the obligation of employees with normal working hours to leave their jobs immediately after the end of the working day. For a sample of such an order, see Example 1; similar provisions can be enshrined directly in the Internal Labor Regulations. Choosing a method for establishing these provisions in a separate order will help to attract the attention of workers to compliance with the labor regime in conditions where the Internal Labor Regulations are a voluminous document, which, even when reviewed with a personal signature, few people read in its entirety. Such an order allows the head of the organization to draw the attention of department heads to the inadmissibility of uncontrolled and unreasonable overtime and reduces his personal liability for accidents and similar incidents at work during non-working hours.

Example 1. Order on working hours with a separate provision stating that at the end of working hours, employees should leave their workplaces

Limited Liability Company "TRANSMAG"

Order

05.09.2013

Tomsk

About compliance with the work regime

In order to ensure compliance with the work and rest regime in the organization, guided byArt. 91, 97-105 , 212 Labor Code of the Russian Federation, Internal Labor Regulations of TRANSMAG LLC, approved by Order of TRANSMAG LLC dated 09/05/2013 N 018 (hereinafter referred to as PVTR),

I order:

1. Head of the HR Department Semenova E.Yu. in the organization as a whole, heads of other structural divisions - in relation to subordinate employees:

— ensure that employees with normal working hours comply with the requirements regarding the inadmissibility of both being late for work and being at the workplace beyond the established working hours, except for the cases provided for in clauses 3.6-3.9 of the PVTR;

— when attracting employees to work outside the working hours established for them (irregular working hours, overtime), ensure compliance with the requirementslabor legislationand legislation on occupational health, safety and industrial sanitation;

— ensure accounting of the time actually worked by each employee in the manner established by the PVTR;

— provide an analysis of the reasons for working outside the established working hours, and, if necessary, timely revisions of labor standards, the List of positions for workers with irregular working hours, which is Appendix 2 to the PVTR, and the duration of additional leaves provided to employees in appropriate cases;

— monitor compliance with other provisions of the PVTR.

2. Head of the HR Department M.D. Arsenyeva ensure that the job descriptions of heads of structural units include the authority to issue orders to involve subordinate employees in work beyond the established working hours (irregular working hours, overtime work). The deadline is September 15, 2013.

3. To the head of the secretariat Leonova V.K. arrange for this order to be brought to the attention of all employees of the organization under personal signature. The deadline is 04/09/2013.

4. Entrust control over the execution of this order to the deputy general director By personnel policy Samokhina P.A.

General Director V.I. Odintsov Odintsov

Secondly, the provision of additional leave for irregular working hours is not associated with the fact of being involved in “extraordinary” work, but with the establishment of an irregular working day regime for the employee as such (i.e. with the potential opportunity to involve the employee in work beyond the established duration of work ) - this follows from system analysis norms art. 101, part 1 art. 119 Labor Code of the Russian Federation. Therefore, to grant leave, it is sufficient that the employee’s position is included in the list of positions with irregular working hours and the terms of this regime in the employment contract.

The author of the article happened to encounter attempts by personnel officers to circumvent this rule by fixing it in the employment contract next condition: in the absence of actual overtime, the employee agrees that he will be left without additional leave (see Example 2 about what wording cannot be included in the employment contract). Do not play such games: at the first complaint of an employee to the competent authorities (labour inspectorate, prosecutor's office) or going to court, as well as if inspectors come on their own initiative, you will find yourself violating labor laws and no wording in the contract will help you, because they illegal and therefore not enforced. Likewise, such provisions should not be included in local regulations (Internal Labor Regulations, Leave Regulations, etc.).

Example 2. Fragment of an employment contract with an illegal condition depriving an employee of the right to additional leave in the absence of actual overtime within the framework of an irregular working day

2. Working hours and working hours.<…>

2.2. An employee may, by order of the Employer, if necessary, be occasionally involved in the performance of his labor function outside the established working hours, and if the Employer does not exercise during the working year his right to involve the Employee in work outside the established working hours, then the Employee for a given working year, additional leave provided for in clause 2.3 of this employment contract is not provided.

Document fragment. Part 2 Art. 9 of the Labor Code of the Russian Federation

Some regulations directly state that the number of vacation days is not related to the duration of actual “extraordinary” work, for example:

Document fragment. Clause 4 of the Rules for the provision of annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget, approved. Decree of the Government of the Russian Federation dated December 11, 2002 N 884 (extract)

To be fair, we note that there are other approaches to solving this issue:

Document fragment. Part 5 of Article 13 of the Moscow Region Law of July 24, 2007 N 137/2007-03 “On municipal service in the Moscow Region” (extract)

In this document, the duration of the vacation is still made dependent on the time of work in excess of the established duration. Although it is not directly stated here that in the absence of overtime, leave is not provided at all, the approach outlined is puzzling. The explanation they usually give him is this. By virtue of Part 7 of Art. 11 of the Labor Code of the Russian Federation, labor legislation applies to state and municipal employees with the features provided for by special laws on state and municipal service, including those adopted at the regional level. Therefore, as a justification for the above provision of the law, it is said that in relation to municipal employees, the said law has priority over the Labor Code of the Russian Federation. If from a formal point of view this is at least somehow explained, then from the standpoint of unified approaches to labor regulation in the Russian Federation, it is difficult to agree with such a rule.

Let's summarize. Unless we are talking about state or municipal employees, for whom separate regulations may establish special conditions on the provision of leave, then “ordinary” workers are granted additional leave for irregular working days in the number of calendar days specified in local regulations and/or the employment contract, regardless of the presence and/or duration of actual overtime. Otherwise, it will indicate a violation of labor laws by the employer, no matter what justification he chooses for this.

Mistake 2: working hours change at the discretion of the employer without the consent of the employee

Having initially established irregular working hours for a large number of positions, employers subsequently often discover that there is actually no need to involve all these employees in “extraordinary” work, and additional leave, as we have already found out, must be provided annually. And then there is a great temptation, by a strong-willed decision (order), to make changes to the list of positions for workers with irregular working hours and exclude a number of positions from it, and then stop providing additional allowances. Such actions in most cases can be qualified as a violation of labor legislation and entail administrative liability under Article 5.27 of the Code of the Russian Federation on Administrative Violations, not to mention the fact that additional leave will have to be provided in full (if the employee had already resigned by the time of the “debriefing” , then it will be necessary to pay him monetary compensation for unused vacation along with interest for the delay in this payment). Let's explain why.

According to Part 2 of Art. 57 of the Labor Code of the Russian Federation, an irregular working day must be reflected in the employment contract with each employee who is hired with the establishment of such a regime. This means that changing the regime (from irregular working hours to normal working hours) will require changes to the employment contract. The change must be made in writing, and the document must contain the signatures of both an authorized representative of the employer and the employee himself.

Document fragment . Article 72 “Changing the terms of an employment contract determined by the parties” of the Labor Code of the Russian Federation

If the document is signed by both participants labor relations no, then, as a general rule, the working hours cannot be changed unilaterally. Actions to exclude a specific position from the list of positions for employees with irregular working hours will be valid only for newly hired persons, who will immediately be assigned normal working hours when applying for a job.

Therefore, it is important to sign the amendment to the employment contract with the employee. We show how to draw up such a document in Example 3. In addition, before signing it, it is necessary to familiarize the employee, under his personal signature, with all documents that are related to the change of work schedule (including re-familiarizing the employee with the Internal Labor Regulations in force at of this employer, as well as with the amended List of positions of employees with irregular working hours, if this list is not an integral part of the Internal Labor Regulations). The fact of familiarization can be verified:

- the employee’s signature in the amendment to the employment contract (we show how this can be done in Example 3 - see clause 4 of the document) and/or

- in another way adopted by the organization to bring to the attention of employees the information contained in the collective agreement, local regulations and other organizational and administrative documents (see Examples 4 and 5).

A sample order for amending the List of positions for employees with irregular working hours is given in Example 4. However, if changes to the specified List are large-scale, it is advisable to approve a new edition of the document (see Example 5).

Example 3. Amendment to the employment contract: instead of irregular working hours, normal working hours are established

Change N 1
to the employment contract dated February 17, 2012 N 02-k

Novorossiysk

Limited Liability Company "Shipbuilding Company "Karavella" (LLC "SK "Karavella"), hereinafter referred to as the "Employer", represented by General Director Oleg Timofeevich Mikheev on the one hand and Ekaterina Dmitrievna Dorofeeva, hereinafter referred to as the "Employee", on the other the parties, collectively referred to as the “Parties”, have drawn up this amendment to the employment contract dated 02/17/2012 N 02-k (hereinafter referred to as the employment contract) as follows:

1. Subclause 2.1 of clause 2 of the employment contract should be stated as follows:

“The employee is assigned normal working hours.

The Employee’s working hours and rest periods correspond to those established by the Employer in the Internal Labor Regulations for employees of SK Karavella LLC (clause 3.2), approved by Order SK Karavella LLC dated July 11, 2009 N 114, with which the Employee is familiarized with his personal signature ".

2. In all other respects that are not provided for by this amendment to the employment contract, the Parties are guided by the employment contract, local regulations and other organizational and administrative documents of the Employer, and current regulations.

3. This amendment is drawn up in two copies having equal legal force - one for each of the Parties.

4. Before signing these amendments to the employment contract, the Employee is familiarized with the following documents under his personal signature:

1) Internal rules Dorofeeva E.D. Dorofeeva 09/16/2013

labor regulations of employees ───────── ────────────── ──────────

LLC "SK "Karavella" (signature) (I.O. Last name) (date)

approved by order

dated July 11, 2009 N 114

2) List of employee positions

with irregular working hours Dorofeeva E.D. Dorofeeva 09/16/2013

"SK "Karavella", approved ───────── ────────────── ──────────

by order of July 11, 2009 N 114, (signature) (I.O. Last name) (date)

with changes made

by order of September 10, 2013 N 083

3) Regulations on employee leaves

LLC "SK "Karavella", approved by Dorofeeva E.D. Dorofeeva 09/16/2013

by order of July 11, 2009 N 115

as amended by order (signature) (I.O. Last name) (date)

dated 10.09.2013 N 083

5. Signatures of the Parties:

Employer: Employee

General Director Dorofeeva E.D. Dorofeeva

Mikheev O.T. Mikheev

Example 4. Order on amendments to the List of positions of employees with irregular working hours, which was previously approved by order of the organization, and the Register on familiarization of employees with this order

Closed Joint-Stock Company"Product-Style"

Order

09.09.2013

N 02.102

Perm

About making changes

in the List of employee positions

Based on the results of the analysis of actual data on work outside the established working hours in the period from 04/03/2009 to 08/30/2013 (minutes of the meeting with the heads of departments and departments dated 09/02/2013 N 02.027), guided byArt. 57, 72 , 91 , 97 , 100-101 , 119 Labor Code of the Russian Federation,

I order:

1. Make the following changes from September 16, 2013 to the List of positions for employees with irregular working hours, approved by order of Product-Style CJSC dated April 3, 2009 N 02.011 (hereinafter referred to as the List): delete paragraphs 6-8, 14-18, 32- 33 Lists.

2. Head of the HR Department Sergeeva I.D. ensure timely execution of changes to employment contracts with employees holding positions mentioned in paragraphs 6-8, 14-18, 32-33 of the List as amended by order of ZAO "Prodakt-Style" dated 04/03/2009 N 02.011, having previously familiarized these employees with the Rules internal labor regulations approved by order of CJSC "Prodakt-Style" dated 04/03/2009 N 02.010.

3. HR inspector Lanskaya N.S. organize familiarization of employees according to the register, which isapplicationto this order, with this order under a personal signature. The deadline is September 11, 2013.

General Director Timofeev A.B. Timofeev

Application

To order CJSC "Prodakt-Style"

dated 09.09.2013 N 02.102

Registry
familiarization with the order of CJSC "Prodakt-Style" dated 09.09.2013 N 02.102

	Structural subdivision	Job title	AND ABOUT. Surname	Personal signature	Date of review
<…>
	Department of Preschool Education	Secretary-clerk of the 2nd category	T.N. Oskina	Oskina	09.09.2013
<…>

Example 5. Order approving a new edition of the List of positions for workers with irregular working hours with attachments: new edition of the List and a sheet for familiarization with it

Open Joint Stock Company "StroyDorTech"

Order

11.09.2013

Omsk

On approval of the new edition

List of employee positions

with irregular working hours

As part of improving the system for regulating the work and rest regime of employees of StroyDorTech OJSC, guided by Art. 57, 72, 91, 97, 100-101, 119 of the Labor Code of the Russian Federation,

I order:

1. Approve and put into effect on November 18, 2013 a new edition of the List of positions for workers with irregular working hours (hereinafter referred to as the List, Appendix 1).

2. The edition of the List of positions for employees with irregular working hours, approved by Order of StroyDorTech OJSC dated September 20, 2010 N 107, shall be considered invalid as of November 18, 2013.

3. Head of the HR Department V.K. Marinina ensure that appropriate changes are made to employment contracts with employees of StroyDorTech OJSC. The deadline is September 27, 2013.

4. To the head of the office Borisova Yu.A. organize familiarization of employees according to the list (Appendix 2) with this order and the new edition of the List of positions of employees with irregular working hours approved by it under personal signature. The deadline is September 16, 2013.

General Director Stroganov A.Yu. Stroganov

Annex 1

To order OJSC "StroyDorTech"

dated 09.11.2013 N 074

Scroll
positions of workers with irregular working hours
(new edition)

Appendix 2

To order OJSC "StroyDorTech"

dated 09.11.2013 N 074

List of employees
familiarized with the order of OJSC "StroyDorTech" dated September 11, 2013 N 074
and the new edition approved by him
List of positions of workers with irregular working hours

Position indicating the structural unit	AND ABOUT. Surname	Personal signature	Date of review

Assistant Manager	A.O. Semenov	Semenov
Assistant Manager	I.Zh. Vasina

In a similar way and in the same order, documents should be drawn up in the reverse situation: when an amendment to the employment contract on an irregular working day is concluded with an employee hired under the condition of normal working hours, before signing which he is also introduced to him under his personal signature with the Internal Labor Regulations, containing provisions on the new mode of work for him, with the List of positions of employees who establish irregular working hours. Do not forget to indicate in the amendment to the employment contract the specific duration of the additional leave due to the employee (or make a link to the document where this is stated, then you will also need to familiarize yourself with it and sign it).

However, there is an exception to the rule about the need for the employee’s consent to change the work schedule. So, by virtue of Part 1 of Art. 74 of the Labor Code of the Russian Federation in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be maintained (including the working hours time), they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function. The employer is obliged to notify the employee in writing about upcoming changes to the conditions of the employment contract determined by the parties, as well as about the reasons that necessitated the need for such changes, no later than 2 months in advance, unless otherwise provided by the Labor Code of the Russian Federation. If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another available job (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his state of health . In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract (Part 3 of Article 74 of the Labor Code of the Russian Federation). And according to Part 4 of Art. 74 Labor Code of the Russian Federation in the absence said work or the employee refuses the proposed job, the employment contract is terminated in accordance with clause 7, part 1, art. 77 Labor Code of the Russian Federation. Let us immediately make a reservation that the application of this article is very difficult from a legal point of view and requires the individual preparation of all documents jointly by the legal and personnel services. This is especially true for situations where such actions can lead to mass layoffs of employees.

In relation to changing the work regime from irregular to normal working hours, it is difficult to imagine circumstances that would not simultaneously require a change in the labor function. However, such cases are still known in practice.

Example from judicial practice. The plaintiff filed a lawsuit against the medical college (hereinafter referred to as the defendant, the employer) with a claim for reinstatement in the position of chief accountant. In support of her claims she stated the following. From 02/14/2004 she worked for the defendant as a chief accountant; her working conditions were stipulated in the employment contract dated 02/14/2004 No. 4, including irregular working hours and additional leave in the amount of 12 calendar days. On November 8, 2010, the employer familiarized her with the additional agreement to the employment contract, referring to Art. 74 Labor Code of the Russian Federation. The plaintiff did not receive any document in the form of a notification; she came to the conclusion that in her situation there was no change in the terms of the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, and did not agree with what was written in the additional agreement. Therefore, the plaintiff signed an additional agreement dated November 8, 2010, with a reservation indicating her disagreement with its terms, including the working hours and rest periods. As a result, she was fired under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties). The plaintiff considered the dismissal illegal and appealed to the Kuibyshevsky District Court of the Novosibirsk Region. The court of first instance granted the claim partially.

However, the defendant did not agree with this decision and appealed it to the cassation court. The latter overturned the decision of the court of first instance and issued a new decision to dismiss the claim. The judicial act referred to the following. In accordance with the decree of the Governor of the Novosibirsk Region and the order of the Department of Health of the Novosibirsk Region, from December 1, 2008, the transition of state units subordinate to the Department of Health budgetary institutions for a new wage system. In pursuance of these regulatory documents the defendant issued an order on September 09, 2008 to introduce new system wages. In connection with the change in the remuneration system, the working hours regime also changed and the condition on irregular working hours for the chief accountant was excluded. Accordingly, this resulted in the cancellation of additional leave. Regarding the plaintiff’s argument that the defendant violated the dismissal procedure, namely: she was not notified of the change in the employment contract 2 months in advance, the court explained the following. The text of the notice is not established by law. The case file contained a written notice from the plaintiff dated July 19, 2010, according to which the employer notified her of changes in working conditions: the wage system, as well as changes in local regulations. The notice stated the reasons why these changes occurred. On the same day, the plaintiff was familiarized with the amended local acts: charter, collective agreement, internal labor regulations, and 09/14/2010 - with the regulations on remuneration, 07/21/2010 - with a new job description. Under such circumstances, the higher court considered that the failure to indicate specific changes in the working hours and rest hours in the text of the notice does not indicate a violation by the defendant of the dismissal procedure, since the plaintiff was familiar with the local acts that contained these changes and knew about them. She was offered a vacant position, but she refused it.

Error 3: additional leave for more than 3 days is provided at the expense of net profit

Quite often, accounting departments object to granting employees additional leave for irregular working hours lasting more than 3 calendar days. This is associated, as a rule, with persistent misconceptions regarding the taxation procedure for the organization of payments to an employee in connection with such leave. Thus, many accountants mistakenly believe that:

— expenses for paid vacation in the amount of 3 calendar days are taken into account for profit tax purposes (i.e., they can be used to reduce the amount of income received by the company before they are subject to income tax, which is beneficial),

- and the costs of providing longer leave are not taken into account and the enterprise must implement them at the expense of its net profit remaining after taxation (which, accordingly, is unprofitable for the organization).

And if an accountant with such an incorrect point of view manages to convince senior management of his approach, then they will in every possible way resist giving employees a vacation of 4, 5 or more calendar days. But with significant overtime within the framework of irregular working hours, employees, having realized the inadequacy of compensation in the form of only 3 days of vacation, may not stay in such work for long, and the head of the department will either be faced with the need to push for an increase in wages to increase the attractiveness of such work in the eyes of subordinates, or with constant staff turnover for these positions. The situation may become more complicated if some workers are required to work overtime more often than others, and everyone is entitled to the same additional leave - 3 days. Then the sense of justice may become even more intense among the most non-conflicting employees.

These kinds of “accounting” misconceptions are often obstacles to establishing a balance between the interests of the employer and employees. Therefore, let’s figure out how the costs of providing additional permits are actually taken into account, and whether or not to use the arguments we present in a dialogue with management is up to you.

Let us remember what the Labor Code of the Russian Federation says about the duration of leave for irregular working hours.

Document fragment . Part 1 art. 119 Labor Code of the Russian Federation

So, if we proceed from the literal interpretation of the norm of the Labor Code of the Russian Federation, such leave can be 3 or more calendar days (the maximum duration of additional leave is not limited). And the specific duration must be specified in the collective agreement or internal labor regulations.

The procedure for accounting for expenses for paying additional vacations for profit tax purposes is established by the Tax Code of the Russian Federation (TC RF).

Fragments of the document. Tax Code of the Russian Federation

Article 255 “Labor expenses” (extract)

Article 270 “Expenses not taken into account for tax purposes” (extract)

Referring to the above norms of the Labor Code of the Russian Federation and the Tax Code of the Russian Federation, the Moscow Department of the Ministry of Taxes and Duties of Russia in letter dated January 5, 2003 N 26-12/1419 makes a dubious conclusion.

Document fragment . Letter of the Department of Tax Administration of Russia for Moscow dated 01/05/2003 N 26-12/1419

At one time, this point of view of the tax authority was presented in many media. Other tax authorities often followed a similar interpretation. It is no wonder that it is so ingrained in the memory of accountants.

But should we be guided by it now? Definitely not. Firstly, the approach of Moscow tax authorities is based on an incorrect interpretation of the provisions of the laws. After all, Art. 255 of the Tax Code of the Russian Federation provides for the inclusion of payment for vacation provided for by the legislation of the Russian Federation as expenses, while the legislation (Article 119 of the Labor Code of the Russian Federation) mentions additional leave lasting not “three calendar days”, but “at least three calendar days” (i.e. three or more days ). Secondly, it is customary to fix the specific amount of additional leave in employment contracts with employees (according to Part 2 of Article 57 of the Labor Code of the Russian Federation). And one of the signs of recognizing costs as expenses, according to the same article. 255 of the Tax Code of the Russian Federation, is also their direct indication in the employment contract. Therefore, expenses should include all actual costs of paying for additional leave, the number of days of which is specified in the employment contract (and/or in the Internal Labor Regulations, a reference to which is contained in the employment contract) and/or in the collective agreement (in those organizations where a collective agreement has been concluded and is in force). This conclusion is also supported by the Russian Ministry of Finance.

Document fragment. Letter of the Ministry of Finance of Russia dated January 28, 2005 N 03-03-04/1/38

...the conditions for providing employees with irregular working hours with annual additional paid leave relate to the work and rest regime, which is an essential condition of the employment contract.

In connection with the above, for profit tax purposes, expenses for payment of annual additional leave lasting at least three calendar days are taken into account in actual amounts, subject to the procedure for granting said leave, provided for by the current legislation of the Russian Federation.

Similar provisions are contained in other, later letters of the Ministry of Finance of Russia: dated 01/13/2006 N 03-03-04/2/5, dated 05/06/2006 N 03-03-03/2/131, dated 01/29/2007 N 03-03 -06/4/6, etc. The correctness of the arguments considered is confirmed by arbitration practice (see, for example, the decision of the Federal Arbitration Court of the North-Western District of October 17, 2006 in case No. A56-28496/2005).

Therefore, the costs of paying for additional leave of any duration are recognized as expenses for profit tax purposes, provided that they are correctly recorded in the appropriate documents. And when deciding what length of leave to set when working in a position with irregular working hours, one should proceed from considerations of the degree of labor intensity at the time of “exorbitant” work, the volume of work performed, the nature of episodes when it may be necessary to involve the employee in work outside established working hours, and how often such “overtime” may occur. This will allow you to avoid disputes with employees and make work on certain positions more attractive in the eyes of candidates when hiring.

Mistake 4: The employer is not interested in a written order

We have already said that the current labor legislation does not formally require the employer to issue written orders to attract employees to work outside the established working hours. Therefore, many organizations, not wanting to spend time in specific situations on issuing written acts on “extraordinary” work and bringing them to the attention of employees under a personal signature, limit themselves to oral instructions on this topic. However, they often encounter the fact that such time savings entail significant losses in the future.

Let's look at how it is actually more profitable to act for a company in which there is a need to occasionally involve employees in “extraordinary” work.

Let's start with the fact that, by virtue of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), it is the employing organization (and its officials authorized in the field of labor protection, primarily the head of the company) who is responsible for safe working conditions, ensuring labor protection for workers places. Therefore, it is in the interests of the company to ensure clear regulation of working hours and to obtain evidence that responsible officials have taken all measures within their power to eliminate accidents at the place of work. Including issuing an order on the inadmissibility of violation of the work regime by employees, which can be expressed not only in lateness to work and absenteeism, but also in the habit of staying at work beyond established working hours in order to attend to personal affairs, using the company’s office equipment for their own purposes. , while demonstrating to the employer imaginary overtime. We have already given a sample of such an order (see Example 1 in the first part of this article on page 51 in N 9 "2013). However, this is only the first step towards controlling the situation with overtime.

Most cases of “exorbitant” work in practice are caused by improper organization of work, both on the part of the employees themselves, who do not have time to work on a working day between numerous smoke breaks and other “eaters” of working time (conversations over a cup of tea with colleagues, telephone conversations with relatives, regular correspondence on personal topics in in social networks etc.), and on the part of their immediate supervisors, who look at this situation “with a blind eye” or incorrectly distribute tasks among subordinates (some are overloaded with work and physically do not have time to complete it in the allotted working time, and others then he sits idle after lunch, not knowing what to do with himself, because he completed all the planned work in the first half of the day). And the habit of procrastinating complex tasks close to the “deadline” does not lead to any good.

Issuing written orders in cases where it is necessary to involve specific employees in work outside the working hours established by them disciplines not only their immediate supervisors (whom senior management can “ask” for overtime if they turn from occasional to regular), but also and the workers themselves (written instructions are always treated more responsibly than oral ones).

The presence of written orders will make it possible to more effectively carry out work on recording actual overtime and, if necessary, promptly raise the question of either revising labor standards, the number of personnel, or eliminating the condition of irregularity for those positions for which in reality there is no need for this.

So, when an employer actively uses irregular working hours, he should not neglect such written orders if he is interested in:

— protect yourself from claims from employees regarding imaginary overtime on their part;

— take measures to reduce the likelihood of employees using office equipment and other organizational resources for personal purposes;

— to obtain evidence that management officials are not at fault in case of accidents involving employees who, on their own initiative, stayed late at work after hours;

— control the situation with unreasonable costs for paying for additional rest time in connection with overtime of personnel due to improper organization of the work of subordinate employees on the part of their immediate supervisors;

— avoid disruptions in the execution of important assignments when employees ignore verbal orders about the need to complete urgent work after the official end of the working day and subsequently use standard excuses “nobody told me anything...”;

— facilitate the fulfillment of the statutory obligation to accurately record the time worked by each employee;

— remove possible questions from tax authorities regarding confirmation of the validity of expenses for providing additional leave to employees in connection with irregular working hours.

For the same reasons, it is not difficult to guess that for those employees who are dishonest, the situation with oral instructions is much more profitable than the company’s established system for issuing written administrative acts.

In order to minimize the labor costs associated with drawing up documents on employment during irregular working hours, it is advisable to unify such work, in particular:

1. Include in the internal labor regulations of the organization (hereinafter referred to as PVTR) provisions on:

— the procedure for establishing irregular working hours;

- how to form, change and supplement the list of positions of workers with irregular working hours (this will allow us to introduce criteria on the basis of which a decision will be made about which workers’ labor function requires irregular working hours, when, under what conditions and in what way the previously approved list may be adjusted). See the order in Example 4 in the first part of the article in No. 5" 2013 on page 53;

— criteria that should be used to guide the determination of specific situations when a particular employee may be involved in “extraordinary” work;

— provision of additional leave to employees with irregular working hours (including the number of days of such leave in relation to individual positions).

Example 6. Form of order to attract employee(s) to work outside the working hours established for him/her

Approved

by order of Yuno LLC

dated 10/07/2013 N 62

Limited Liability Company "Yunona"

Order

_____________ N ______________

(date of)

Orel

About recruitment

beyond the established

working hours

Due to _________________________________________________________________

(the actual basis for hiring for

within the established working hours)

guided by Art. 101 Labor Code of the Russian Federation, Rules

internal labor regulations of Yuno LLC (clause 3.4.1, appendix

N 4.1), approved by order dated September 28, 2012 N 93,

I oblige:

1. ___________________________________________________________________

(names of positions (indicating structural divisions),

surnames and initials of employees hired to work outside

the duration of working hours established by him)

during the period _________ carry out ________________________________________

(assignment within the scope of official duties

responsibilities of employees, which should

be performed outside the established

them working hours)

outside the established working hours within

determined by him in accordance with the terms of employment contracts

irregular working hours and taking into account the need to fulfill

assigned work ______________________________________________________________.

(deadline by which the assigned work must be completed)

Basis: ______________________________________________________________

(type of document (for example, official or memorandum) and its

division), surname, initials of the official)

from ____________________ N.__________________________________________.

(date) (number)

2. ___________________________________________________________________

surname, initials of the manager authorized to control

work assigned by this order)

ensure control of _____________________________________________________.

(the work being performed or its key parameters,

subject to control)

3. ___________________________________________________________________

(name of position (indicating the structural unit),

ensure actual accounting of time worked ______________________

(names

positions (indicating structural units), surnames, initials

workers involved in work outside the limits established by them

working hours)

4. ___________________________________________________________________

(name of position (indicating the structural unit),

surname, initials of the responsible person)

bring this order to the attention of ______________________________

(names of positions (with

_________________________________________________________________________

indicating structural units), surnames, initials of employees

involved in work beyond the duration established by him

working hours; as well as the officials specified in clauses 2-3 of this

orders)

under personal signature. Period of execution ____________________________________.

_____________________________ ________________ ___________________

(job title (personal signature) (initials, surname)

(indicating the structural

divisions) persons,

authorized to issue this

order)

2. Issue an order on compliance with the labor regime at the enterprise, which provides for:

- the obligation of employees with normal working hours to leave their workplaces immediately after the end of the working day;

- extension of a similar obligation to workers with irregular working hours in all cases, with the exception of those when, by written order, they are involved in work outside the working hours established by them;

— a list of officials of the company’s management who can issue, signed, orders on the occasional involvement of subordinate employees to work outside the working hours established by them;

— assigning responsibilities to relevant officials to analyze the reasons for working outside the established working hours.

3. Approve the form of the order to engage in work within the framework of non-standardization, which could be easily used in a specific situation. You can use Example 6 as a sample.

The proposed documentation option when involving enterprise employees to work outside the established working hours not only ensures its uniformity, but also contributes to the correct recording of the time actually worked by such employees. We will talk about why it is necessary to establish this accounting when considering the following misconception.

Mistake 5: Time worked outside the established working hours may not be taken into account

The roots of this myth rest on the following opinion, expressed more than once in publications in periodicals: if specific work time outside the established working hours is noted in the time sheet, this will mean that the employer was able to measure and calculate the employee’s work in hours, i.e. .e. such labor will turn from irregular to standardized, and overtime will become paid as overtime. On this basis, a number of experts conclude that it is better not to reflect work beyond the established working hours in the time sheet at all. Moreover, as is known, the provision of additional paid leave does not depend on the presence or absence of actual overtime during the year.

However, by virtue of Part 4 of Art. 91 of the Labor Code of the Russian Federation, the employer is obliged to keep records of the working time actually worked by each employee! And violation of this duty threatens to bring administrative liability in the manner and under the conditions established by Art. 5.27 of the Code of the Russian Federation on Administrative Offences. In particular, officials of the organization can be fined in the amount of 1,000 to 5,000 rubles, the organization itself - from 30,000 to 50,000 rubles (or its activities can be suspended for up to 90 days). Moreover, repeated violation of labor legislation by an official who was previously subjected to administrative punishment for a similar violation may lead to his disqualification.

Let us clarify that labor legislation, establishing the employer’s obligation to keep records of the time actually worked by each employee, does not make any exception for work in conditions of irregular working hours.

At the same time, Rostrud, in a letter dated 06/07/2008 N 1316-6-1, clarified that the Labor Code of the Russian Federation does not recognize overtime during irregular working hours as overtime work, which is subject to increased wages. On the contrary, this agency emphasizes that for work on irregular working hours, compensation is provided only in the form of additional leave.

Another question is that within the framework of an irregular working day, overtime in itself should not be systematic; it should only be episodic. And the presence of a written document that reflects the actual time worked allows us to draw a conclusion about whether employees are really involved in “extraordinary” work on an irregular basis. In other words, the absence of the need to record time worked in excess of the established duration is said, as a rule, by those who want to hide (from inspection bodies and management) constant overtime. But, firstly, sooner or later the secret can still become obvious, and secondly, the absence of documents recording working hours creates a precondition for bringing to administrative responsibility due to the very fact of the absence of such documents.

If the employer does not abuse his right to involve staff in “exorbitant” work within the framework of irregular working hours, then he should not be afraid to keep correct records of time worked. In general, if this regime is properly established at an enterprise, neither the inspection authorities nor the courts should have any questions for the employer. This is confirmed by numerous examples from judicial practice. Let's list some of them.

Arbitrage practice. Driver who worked in the Administration of the Governor and Government of the Krasnoyarsk Territory passenger car a second-class car depot of the transport service department filed a claim with the employer to recover payment for overtime work and compensation for moral damages. The claim was motivated by the fact that from 2007 until the date of dismissal (11/18/2011), he regularly, on behalf of the employer, worked over 8 hours a day (despite the fact that his work schedule was an 8-hour working day with a five-day working week), averaged 12 hours a day, but received no overtime pay.

When considering the case, the court found that, according to the employment contract concluded between the plaintiff and the defendant, the plaintiff’s working hours were established in accordance with the employer’s internal labor regulations. It stated that work outside the established working hours, if the employee works on irregular working hours, is not overtime. At the same time, in accordance with Appendix 2 to these Rules, the driver of a passenger car was given an irregular working day.

On this basis, the court made, among other things, the conclusion that the plaintiff, having entered into an employment contract on the terms of an irregular working day, thereby already expressed his consent to being involved in work outside the established working hours, therefore the time worked by the plaintiff for outside the normal working hours, overtime work is not and is not subject to the guarantees provided by law for employees working overtime (appeal ruling of the Krasnoyarsk Regional Court dated September 19, 2012 in case No. 33-8174/2012).

Arbitrage practice. The plaintiff filed a lawsuit against the Department Federal service bailiffs in the Republic of Buryatia for the recovery, among other things, of wages for overtime work and the amount of compensation for moral damage. He referred to the fact that during his service as a bailiff, he was involved, at the initiative of the employer, in working beyond normal working hours.

The court found that the plaintiff’s service contract provided for irregular working hours and additional paid leave for it. The defendant proved that the plaintiff was granted additional leave. Therefore, the court, along with other conclusions, in relation to the claim for payment for overtime work, stated that there were no grounds for paying the plaintiff for work performed during a period exceeding the normal duration of work time (appeal determination Supreme Court Republic of Buryatia dated 04/09/2012 in case No. 33-742).

Arbitrage practice. The plaintiff, who worked as a driver at ZAO Rudnik Aprelkovo, filed a lawsuit against the employer to recover overtime pay and compensation for moral damages. In substantiation of his claims, he stated that there was an abuse of the right and the regime of irregular working hours on the part of the employer.

However, in this situation, the court supported the employer, indicating that from the employment contract and waybills it follows that the plaintiff worked irregular working hours; upon dismissal, the plaintiff received compensation for unused additional leave for irregular working hours in full (appeal ruling of the Trans-Baikal Regional Court dated October 16, 2012 in case No. 33-3284-2012).

So, the obligation to keep records of the working time actually worked by each employee, including workers with irregular working hours, is established by law. But in the Labor Code of the Russian Federation there are no rules on how to correctly carry out this accounting.

From January 1, 2013, unified forms of primary accounting documentation for labor accounting and payment became optional. But this does not mean that accounting documents are not required at all. The whole question is in what form they should be drawn up starting from 01/01/2013.

Now employers can either continue to use the unified forms, having approved them as used in their enterprise, or develop their own forms of documents, also approving them in in the prescribed manner. Most organizations have already used the first of the described options. However, the work time sheet (according to forms N T-12, T-13, approved by Resolution of the State Statistics Committee of Russia dated January 05, 2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment”) does not provide a special symbol for work outside the normal working hours during irregular working hours. Therefore, in such a situation there is room for maneuver. You can:

- or supplement the “Goskomstat” forms with new designations and columns/lines in order to reflect in them processing in conditions of irregular working hours, approving its edition of this form for internal use in company;

- or develop the form of another document - a log of time actually worked (in excess of the established working hours) by employees with irregular working hours.

The second option is more convenient. It allows you not to overload the time sheet with data on overtime during irregular working hours and take into account such overtime separately from those that are subject to payment as overtime work. At the same time, confirmation of fulfillment of the obligation to maintain actual records of working time worked in excess of its established duration, this document will allow you to avoid administrative liability. A sample of the journal form and its completion is given in Example 7.

Example 7. Log book of actual hours worked in excess of the established working hours by employees who have an irregular working day

Magazine title page

Closed Joint Stock Company "Gamma"

Magazine
accounting for actual hours worked (in excess of the established working hours) by employees who are assigned irregular working hours for 2013.

Responsible for maintaining the journal:

HR Inspector A.S. Komova 01/01/2013

divisions)

───────────────────────── ────────────────── ───────────────────────

(name of position (initials, surname) (date from which

responsible person with assigned responsible person

indicating the structural entity)

divisions)

(name of position (initials, surname) (date from which

responsible person with assigned responsible person

indicating the structural entity)

divisions)

<…>

Subsequent pages of the magazine

October 2013

Structural subdivision

Last name, initials, position (specialty, profession)

Personnel Number

Notes on the duration of work outside the established working hours, hour

Duration of work beyond the established working hours for

Note

half a month

Department of Labor and Wages

Soeva S.S.,

economist

order dated October 25, 2013 N 04.2-03, report by Soeva S.S. dated October 31, 2013 N 04.2-01

In practice, the question arises: how will the person responsible for drawing up documents for the actual recording of hours worked record overtime? Does he also need to stay late at work, monitoring the working hours of an employee with irregular working hours? Not at all. It is enough to provide in the company’s internal documents a mechanism for confirming processing. It can be:

— data (printouts) automatic system access control to premises;

— personal signatures of employees in logs of arrival and departure from work, indicating the time of arrival at work and departure from work;

- reports (official) notes of the relevant employees and their managers, reports on work done outside the established working hours, etc.

The specific option is selected depending on the specifics of the activity and the peculiarities of the document flow of a particular enterprise.

Mistake 6: If you work part-time, you cannot have irregular working hours.

Until now, many people believe that irregular working hours can only be established for full-time employees. And for those hired for part-time work, it is allegedly impossible to talk about irregular working hours. This position is partly based on the note to the List of positions of employees of the Pension Fund of the Russian Federation with irregular working hours, with the exception of service personnel (approved by Resolution of the Board of the Pension Fund of the Russian Federation dated November 1, 2007 N 274p). It provides for the following: for employees who, in accordance with the law or by agreement between the employee and the employer, have part-time working hours (part-time (shift) or part-time work week), an irregular working day is not established.

However, the current legislative definition of irregular working hours, given in Art. 101 of the Labor Code of the Russian Federation, implies that an employee may occasionally, by order of the employer, be involved in work beyond the established working hours (i.e., including part-time). Rostrud also adheres to this interpretation:

Document fragment

Letter of Rostrud dated 04/19/2010 N 1073-6-1 “On the indexation of wages for employees, as well as the possibility of establishing irregular working hours for part-time workers”

An exception to this rule is the work of part-time workers. Although there is formally no direct prohibition on establishing an irregular working day for a part-time employee, it should be remembered that his work time is initially limited by law: according to Art. 284 of the Labor Code of the Russian Federation, the duration of working time when working part-time should not exceed 4 hours a day, and within 1 month (or another accounting period) the duration of working time should not exceed half the monthly norm (or the norm of working time for another accounting period) established for the corresponding category of employees. Therefore, we do not recommend establishing irregular working hours for part-time employees, even if the positions they hold part-time are included in the list of positions of employees with irregular working hours approved by the enterprise.

Lately, employers who are having difficulties with people working long hours have been turning to us for clarification. The problem is that the latter sometimes start work later, for example, a couple of hours, believing that being late is acceptable, since in previous days there were delays at work after its formal end. And if they were often late, they demand paid time off, indicating that they already worked too much, and significantly. Is the position of the workers legal, should the employer satisfy their demands and provide an additional day off, how is work structured during irregular working hours? You will find answers to these and other questions in the article.

According to Art. 97 of the Labor Code of the Russian Federation, the employer has the right, in the manner prescribed by the Labor Code, to involve an employee in work beyond the working hours established for him:

for overtime work (Article 99 of the Labor Code of the Russian Federation);
if he works on irregular working hours (Article 101 of the Labor Code of the Russian Federation).

The concept of irregular working hours

Article 101 of the Labor Code of the Russian Federation provides a clear definition of such a working regime - this is a regime in which individual employees can, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

In practice, HR and accounting services often equate irregular working hours to overtime work, but without providing appropriate guarantees.

Overtime work is carried out at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period (Article 99 of the Labor Code of the Russian Federation). That is, the concept of irregular working hours in the Labor Code presupposes the appointment of a special working time regime. It is incorrect to equate this concept with overtime work.

Those who work irregular working hours, like other employees, are subject to the work schedule of the organization. For example, if a company’s working day starts at 9.00 and ends at 18.00, then an employee with irregular working hours must come to and leave work at the specified time. The key point with irregular working hours is that the employee is involved in work beyond the established working hours occasionally, that is, not often. Although there are employers who are confident that if an employee has such a work schedule, he must sit at work from 8.00 to 00.00. This is mistake.

Many workers believe that since they have an irregular working day, they can come to work at 10:00 or 11:00 instead of the required 9:00, or leave whenever they please. It's a delusion. The introduction of irregular working hours does not at all imply a flexible working schedule. Applying this regime to separate group persons does not relieve them from responsibility for failure to comply with labor discipline.

Thus, the employee filed a lawsuit to declare the disciplinary sanction illegal. He was reprimanded for being 25 minutes late to work. The employee believed that there could be no delay, since he had an irregular working day. The court, recognizing the disciplinary sanction as legal, indicated that Irregular working hours involve working outside the established working hours and do not provide for the release of the employee from work within the established working hours, as well as the employee’s arbitrary independent determination of the time of arrival and departure from work, and lateness for work(Determination of the Moscow City Court dated 06/07/2016 No. 4g-5671/2016) .

Who can have irregular working hours?

Let us say right away that the Labor Code does not limit the choice of the employer: it has the right to determine the categories of employees who can be assigned such a work regime. The main condition is to develop and approve a list of employee positions. It is included in the collective agreement, agreement or any local regulation of the employer.

Such a list may include employee positions:

the duration of work of which cannot be accurately calculated (company managers, business personnel and technical service workers);
planning to complete assigned tasks at their own discretion;
whose working day is divided into intervals of unspecified duration.

You should not include absolutely all positions on the staffing table in the list - controllers will consider this irrational.

For your information

The list of positions of employees with irregular working hours must be agreed upon with the representative body of employees (if there is one).

Let's give an example of what such a list might look like.

For working irregular hours, employees holding positions named in clauses 1 and 2 are granted an additional annual paid leave of 5 calendar days in accordance with clause 3.7 of the internal labor regulations dated 10.10.2003 No. 3.

Is it possible to establish an irregular working day for a person performing work on a part-time basis?

Yes, you can. There is no corresponding prohibition, and Rostrud has spoken out on this issue more than once, pointing out this possibility (see, for example, Letter dated April 19, 2010 No. 1073-6-1).

Drawing up conditions for irregular working hours

Many employers believe that if an employee is familiar with local regulations, according to which his position requires a special work schedule, this is enough to periodically involve the employee in working beyond normal limits. Moreover, most employers prefer not to formalize the recruitment in any way, making verbal orders. However, let us say right away that it is not enough to approve a list of positions for workers with irregular working hours. Any time it is necessary for an employee to work more than he should, this should be documented.

So, if even before hiring it is known that to this employee If an irregular working day will be necessary, before concluding an employment contract, a newcomer must be familiarized with local regulations that establish a list of positions with irregular working hours and indicate the type and amount of compensation for work in this mode. Then an employment contract is drawn up, which includes a condition for working on irregular working hours, if the corresponding position is included in the list of positions of employees with irregular working hours. The inclusion of such a condition in the contract is necessary, since among the mandatory conditions of the employment contract named in Art. 57 of the Labor Code of the Russian Federation, it appears working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer).

Thus, the employee was disciplined for refusing to continue working outside of working hours. Recognizing the punishment as illegal, the court said that failure to comply with the verbal order of the head of the department on the urgent processing of materials for the field season cannot serve as a basis for bringing to disciplinary liability in the form of a reprimand, even if the employment contract establishes a regime of irregular working hours (Appeal ruling of the Kurgan Regional Court dated 07.08. .2014 in case No. 33-1982/2014).

After signing the employment contract, an order is issued in which in the column “Conditions of employment, nature of work” an indication of a special mode of work is made. Next, fill in employment history without specifying a special work schedule, employee’s personal card.

If the position was included in the said list during the work process, then employees occupying these positions must be notified in writing of the change in work mode at least two months before the establishment of the new mode. Since Art. 74 of the Labor Code of the Russian Federation allows changing the terms of an employment contract only for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.), the employer must have reasons to include a particular position in the list of positions with irregular working hours.

If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another available job (both a vacant position or work that meets his qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health condition.

In the absence of the specified work or refusal of the proposed employment contract is terminated in accordance with clause 7, part 1, art. 77 Labor Code of the Russian Federation.

Registration of attraction to work beyond normal working hours

In irregular working hours, an employee is involved in work periodically by order of the employer. However, in Art. 101 of the Labor Code of the Russian Federation does not say how such an order should be drawn up. Based on this, we can say that the legislator also allows oral form. At the same time, we believe that oral instructions should only be used if the company has clearly established time tracking.

There are two positions regarding the fixation of overtime during irregular working hours.

Some experts believe that this is simply necessary, since according to Part 4 of Art. 91 of the Labor Code of the Russian Federation, each employer must keep accurate records of the working time worked by each employee. For this purpose, a time sheet is most often used. unified form T-12 or T-13. Using magazines is also not prohibited.

If an employee is late after work, then most likely the employee entering information into the time sheet will go home earlier, and accordingly there will be no one to record the number of overtime hours. In such cases, it is advisable to issue a written order. In addition, you can write in job description or an employment contract, for example, that an employee stays at work for two hours twice a month to prepare a report. But there is no need to establish a condition that you need to stay late every day or every other day. Otherwise, when an employee applies to the State Labor Inspectorate, inspectors recognize such periodic involvement in work outside working hours as a violation of labor legislation.

Other experts believe that indicating overtime on the timesheet leads to the possibility of confusing irregular working hours with overtime work, and if the accountant considers the mark on the timesheet to be information about overtime, he will pay for it.

We adhere to the first point of view, since no one has canceled the time sheet. And recording the time spent at work will help the employer track the frequency of going beyond the working day. In addition, time tracking will be useful in the event of any emergency - it will be possible to say for sure whether the employee was at work or not.

note

Compensation for working irregular hours

As we found out, overtime during the named work mode is not paid. However, legislators did not leave such workers without compensation.

Article 119 of the Labor Code of the Russian Federation determines that employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by a collective agreement or internal labor regulations and cannot be less than three calendar days. This leave can be added to the annual main paid leave or taken separately.

note

The right to additional paid leave does not depend on whether the employee works overtime or goes home on time. If the employment contract reflects the condition of irregular working hours, then it will not be possible to avoid the provision of additional days of rest.

Sometimes employees, believing that they have worked a lot (for example, worked outside working hours every day for a month), ask the employer for an additional paid day off. Their desire is understandable - they thought that they would overwork sometimes, but the employer involved them in such work all the time. But overtime hours during irregular working hours are not equal to overtime hours during overtime work, in which an employee has the right to choose additional rest time instead of increased pay (Article 152 of the Labor Code of the Russian Federation). Since the law provides for only one type of compensation - additional leave, the employer is not obliged to satisfy such a request,

Attracting to work on holidays and weekends, to work at night

Let us repeat that many employers interpret Art. 101 of the Labor Code of the Russian Federation in their favor, considering that those who work irregular working hours must work “without days off or holidays.” But this position is wrong. Workers in this regime are subject to all the norms of the Labor Code and can be recruited to work on a non-working holiday or day off only in compliance with the rules established by the code.

For example, to attract employees with irregular working hours to work on days off, you will have to strictly follow Art. 113 of the Labor Code of the Russian Federation and formalize:

written agreement;
taking into account the opinion of the elected body of the primary trade union organization;
notification of the right to refuse work on a day off (for disabled people, women with children under three years of age) and familiarize employees with it against signature;
order to hire someone to work on a day off.

In addition, before issuing an order, you will have to make sure that employees have no medical contraindications for such work.

Finally, work on a day off must be paid according to the rules of Art. 153 Labor Code of the Russian Federation.

For your information

Work on a weekend or a non-working holiday is paid at least double the amount:

for piece workers - no less than double piece rates;
employees whose work is paid at daily and hourly tariff rates - in the amount of at least double the daily or hourly tariff rate;
for employees receiving a salary (official salary) - in the amount of at least a single daily or hourly rate (part of the salary (official salary) for a day or hour of work) in excess of the salary (official salary), if the work was performed within the monthly working time norm, and in the amount of no less than double the daily or hourly rate (part of the salary (official salary) for a day or hour of work) in excess of the salary (official salary), if the work was performed in excess of the monthly working hours.

Like working on weekends, working at night is a deviation from the norm for an employee with irregular working hours. Let us remind you that according to Art. 96 of the Labor Code of the Russian Federation, the time from 22.00 to 6.00 is considered night time. Accordingly, employment at this time must be properly formalized and paid at an increased rate - at least 20% is added to the salary or tariff rate (Article 154 of the Labor Code of the Russian Federation).

Summarize

If necessary, the organization can establish an irregular working day for individual employees. At the same time, a local regulatory act must define a list of positions for which such a work regime is applied. The provision for a working mode that differs from that established in the organization must be recorded in the employment contract.

An irregular work schedule presupposes compliance with the established work and rest regime at the enterprise, and, if necessary, an increase in work hours. Overtime is compensated by additional paid leave of at least three days.

Irregular working hours: instructions for use. We arrange irregular working hours

Working conditions during irregular working hours

Who can work irregular hours?

Can a part-time worker have an irregular working day?

Working hours during irregular hours

Compensation for irregular work

Irregular working hours and overtime

Flexible hours, long hours, overtime - what's the difference?

How is an irregular working day formalized in 2019?

How many hours can you overwork?

Read also

Articles in this section

Error 1: if the employee “hasn’t worked too hard,” he is not given additional permission

Order

Mistake 2: working hours change at the discretion of the employer without the consent of the employee

Change N 1
to the employment contract dated February 17, 2012 N 02-k

Order

Registry
familiarization with the order of CJSC "Prodakt-Style" dated 09.09.2013 N 02.102

Order

Scroll
positions of workers with irregular working hours
(new edition)

List of employees
familiarized with the order of OJSC "StroyDorTech" dated September 11, 2013 N 074
and the new edition approved by him
List of positions of workers with irregular working hours

Error 3: additional leave for more than 3 days is provided at the expense of net profit

Mistake 4: The employer is not interested in a written order

Order

Mistake 5: Time worked outside the established working hours may not be taken into account

Magazine
accounting for actual hours worked (in excess of the established working hours) by employees who are assigned irregular working hours for 2013.

Mistake 6: If you work part-time, you cannot have irregular working hours.

The concept of irregular working hours

Who can have irregular working hours?

Drawing up conditions for irregular working hours

Registration of attraction to work beyond normal working hours

Compensation for working irregular hours

Attracting to work on holidays and weekends, to work at night

Summarize

Irregular working hours: instructions for use. We arrange irregular working hours

Working conditions during irregular working hours

Who can work irregular hours?

Can a part-time worker have an irregular working day?

Working hours during irregular hours

Compensation for irregular work

Irregular working hours and overtime

Flexible hours, long hours, overtime - what's the difference?

How is an irregular working day formalized in 2019?

How many hours can you overwork?

Read also

Articles in this section

Error 1: if the employee “hasn’t worked too hard,” he is not given additional permission

Order

Mistake 2: working hours change at the discretion of the employer without the consent of the employee

Change N 1 to the employment contract dated February 17, 2012 N 02-k

Order

Registry familiarization with the order of CJSC "Prodakt-Style" dated 09.09.2013 N 02.102

Order

Scroll positions of workers with irregular working hours (new edition)

List of employees familiarized with the order of OJSC "StroyDorTech" dated September 11, 2013 N 074 and the new edition approved by him List of positions of workers with irregular working hours

Error 3: additional leave for more than 3 days is provided at the expense of net profit

Mistake 4: The employer is not interested in a written order

Order

Mistake 5: Time worked outside the established working hours may not be taken into account

Magazine accounting for actual hours worked (in excess of the established working hours) by employees who are assigned irregular working hours for 2013.

Mistake 6: If you work part-time, you cannot have irregular working hours.

The concept of irregular working hours

Who can have irregular working hours?

Drawing up conditions for irregular working hours

Registration of attraction to work beyond normal working hours

Compensation for working irregular hours

Attracting to work on holidays and weekends, to work at night

Summarize

Change N 1
to the employment contract dated February 17, 2012 N 02-k

Registry
familiarization with the order of CJSC "Prodakt-Style" dated 09.09.2013 N 02.102

Scroll
positions of workers with irregular working hours
(new edition)

List of employees
familiarized with the order of OJSC "StroyDorTech" dated September 11, 2013 N 074
and the new edition approved by him
List of positions of workers with irregular working hours

Magazine
accounting for actual hours worked (in excess of the established working hours) by employees who are assigned irregular working hours for 2013.