It is usually necessary to take a vacation “forward”, that is, without first working out the months necessary for its provision, in the event of emergency life circumstances. In some cases, employers are required to provide such leave at the request of the employee, but most employees are deprived of such privileges, so they should rely solely on the goodwill of their immediate supervisor. As a rule, companies are reluctant to grant leave, as this increases the likelihood of additional problems associated with the dismissal of an employee until the completion of all previously paid leave.
To whom is leave "forward" provided on a mandatory basis?
As a general rule, the right to full leave after the conclusion employment contract occurs in an employee after six months of work in the organization. Some employees may demand leave before the expiration of the specified period, and the company cannot refuse them. Such categories of employees include, for example, women who should be granted leave on application before leave related to pregnancy, childbirth or immediately after it. In addition, employees who have not reached the age of majority, employees who have adopted a child or several children under three months have the right to receive leave "forward". By agreement between the employee himself and the company, leave before the expiration of the due period of work may be granted to any employee.
What threatens the employee when granting leave "forward"?
Many employees negotiate with their employer for "forward" leave with the intention of quitting immediately after the end of such leave. Such an approach is in fact meaningless, since labor law protects employers in this area by allowing them to make deductions from the employee's salary on account of vacation days that have already been paid but have not yet been worked out. Withholding can be carried out subject to the restrictions established by law, and in the absence of the employee's consent to the implementation of such a withholding cash may be charged to judicial order. That is why to negotiate vacation pay ahead of time should only be done if certain objective circumstances really exist and the employee intends to continue working in this company.
The procedure for providing rest to employees is regulated by labor legislation. In the Labor Code of the Russian Federation, vacation for next year is not regulated in advance, but this practice is quite common. Rest in a similar manner can be provided to an employee by agreement with the management of the enterprise.
Who is entitled to leave
The Labor Code of the Russian Federation obliges the employer to provide annual rest days. In the first year, a person who has worked for at least six months has a similar right. The exceptions are:
- citizens under the age of majority
- pregnant women,
- participants of the Great Patriotic War,
- part-timers,
- citizens who are raising two or more children,
- other persons.
There is no clear definition of this concept in the legislation. The generally accepted definition is to provide an employee with days off before the end of the working year.
In most cases, a similar time period is provided to persons after working out for six months. In this case, they have the right to take two vacation weeks, but by agreement with the management of the enterprise, this period can be extended to a month.
Important! Only annual paid leave may be granted in advance. For all other days of rest, a citizen must leave on time. Download for viewing and printing:
How can I take a vacation in advance for the next year
If the employer does not mind, the employee can take this type of vacation after working a few days in the new year. But it is impossible to issue it immediately for two or three working periods or for a year that has not yet arrived. This is contrary to labor law.
If a citizen is given rest for the future period, he will be forced to work the whole next year without a break. This is a violation of the law and the interests of the employee himself.
Attention! Employees who work in positions associated with harmful or dangerous working conditions can pre-register the main and additional holiday period in full size.
Calculation of holiday payment
Vacation pay will be calculated based on the average salary of the employee.
First, the average salary for the monthly period is determined by the formula:
ZPav.mon. = (ZP1 +ZP2+…ZPn)/ N
The average monthly salary is the ratio of the amount of payments received for each month to the number of months worked.
ZPav.d. = ZPaver.month. /29.3
It is the ratio of the average wages per month to the average number of days in a month.
OTPstart = ZPav.d. × D
It is also necessary to withhold income tax from accruals. This is done according to the formula:
personal income tax = otpnach. × 13%
And the final amount of vacation pay is calculated:
OTP \u003d OTP init. — personal income tax
Example
Citizen Petrov I.P. plans to take a vacation in advance for two weeks. His average monthly salary is 25,000 rubles. Vacation pay must be calculated in the following order:
Determination of the average daily wage:
25000 / 29.3 \u003d 853 rubles 24 kopecks
The amount of accruals per day will be:
853.24 × 14 \u003d 11945 rubles 36 kopecks
11945.36 × 13% = 1552 rubles 90 kopecks
The final size is determined:
11945 rubles 36 kopecks - 1552 rubles 90 kopecks = 10392 rubles 46 kopecks
The nuances of providing
Conditions for granting such a period:
- it is important to determine what interval is included in the length of service;
- provision of days in advance is possible only by agreement with the management of the organization;
- duration should not be less than two weeks;
- cannot be replaced by monetary compensation.
In other cases, vacation days are provided in accordance with the approved schedule.
The employee formalizes his desire to receive this leave with a statement. The will of the employer is reflected in the resolution on this document. A sample application is usually available at the enterprise and is adapted to each specific situation.
Payments in case of dismissal of an employee
If such an agreement was concluded with an employee, he must work required amount days. Otherwise, the employer will suffer losses. But, according to the law, the management of the organization does not have the right to demand compensation for the time off if the contract with the person is terminated for the following reasons:
- by agreement of the parties;
- upon expiration of the contract;
- when transferred to another organization;
- due to the reduction of staff and the number of employees at the enterprise;
- refusal to continue activities due to changes in working conditions;
- temporary incapacity for work lasting more than four months, with the exception of a decree;
- due to learning;
- in connection with retirement;
- under other valid circumstances.
If the contract is terminated for other reasons, for example, upon dismissal for own will, the employer has the right to demand compensation for days off.
Important! Article 138 of the Labor Code of the Russian Federation establishes a limitation for the deduction of such compensation. Its size should not exceed one-fifth of the salary. If the funds were paid in a larger amount, their return is possible only by agreement with the employee.
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Early prenatal leave for pregnant women
Providing such a measure to a pregnant woman is a fairly common practice. At the same time, the date of registration for the position does not matter, early vacation days are due to the employee if there is a certificate from the antenatal clinic, followed by maternity leave. This rule is regulated by article 260 of the Labor Code of the Russian Federation.
In this case, the employee writes a statement according to the following model:
Note! The management of the enterprise has no right to refuse such a request to a pregnant employee, since this right is guaranteed by the Labor Code of the Russian Federation. She also needs to pay all the money due.
Features of registration of additional leave for military personnel
Military personnel, like ordinary citizens, have the right to a vacation period. However, in terms of regulation labor relations special regulations. The soldier has the right to take time off extra days if he has good reasons and in other cases established by law. At the same time, his will is issued in the form of a report, not a statement.
The commander considers the report in the manner prescribed by law. If the request is approved, an appropriate order is issued. The serviceman needs to issue documents for travel, and also be noted in the journal, indicating the place of stay. These rules are regulated by Decrees of the President of the Russian Federation No. 1237 and No. 1495.
Note! Upon arrival, the serviceman is marked at the local military registration and enlistment office. After returning to the place of duty, he must also check in and hand over transport tickets, which will confirm the fact of the trip. It is extremely important for a soldier to comply with the requirements of the law. He can be prosecuted for violations. Download for viewing and printing:
Registration of additional leave for a pensioner
Additional days are due to pensioners in the presence of the following circumstances:
- if they carry out labor activity in harmful or dangerous conditions;
- with an irregular schedule;
- in the implementation labor activity in the Far North;
- in other conditions within the framework of the current legislation.
All categories of pensioners can count on additional days.
Delivery order:
- pensioner writes a statement;
- the immediate supervisor puts down a resolution confirming consent;
- the document is transferred to higher authorities;
- after signing, the paper is transferred to the personnel department;
- The pensioner is paid all the money due.
The legislation does not impose any special requirements on the application. It is in free form.
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Starting from the second working year, regular vacations are granted to employees, regardless of how many months of the period for which the vacation is granted are actually worked. In the event of the dismissal of an employee who received leave in advance, the accountant may face the problem of withholding and accounting for tax purposes the amounts of overpaid vacation pay.
The Labor Code allows advance leave
The Constitution of the Russian Federation guarantees employees who work in organizations under labor contracts the provision of annual paid leave (clause 5, article 37 of the Constitution of the Russian Federation). For the employer, such an obligation is established in Art. 122 of the Labor Code of the Russian Federation.
There is one limitation in the Labor Code. It refers to the first year of an individual's employment with the organization. The right to annual paid leave arises for the employee only after six months of continuous work for this employer. But by agreement of the parties, leave may be granted before the end of this period. Please note: in the first year of work, they have the right to go on vacation ahead of schedule:
- women - before maternity leave or immediately after it;
Employees under the age of 18;
Employees who have adopted a child (children) under the age of three months.
From the second year of work, the employer is obliged to provide annual paid leave at any time of the year (according to the vacation schedule), regardless of whether the employee has completed the full working year or not. Recall that the working year for each employee is determined individually from the date of his employment in the organization.
In addition, the Labor Code of the Russian Federation does not provide for the provision of vacation in proportion to the hours worked. Therefore, the situation when vacation is provided in advance is not only acceptable, but also very common.
If we talk about part-time workers, the Labor Code expressly provides for the possibility of providing annual paid leave in advance. The fact is that the employer must send a part-time worker on vacation at the same time that he takes a vacation from his main place of work. If the employee has not worked for six months at a part-time job, leave is provided in advance (Article 286 of the Labor Code of the Russian Federation). At the same time, experts Federal Service on labor and employment in their explanations indicate: even if a part-time job asks for annual paid leave not simultaneously with annual leave at the main place of work, then the organization does not have sufficient grounds to satisfy such an application. This is due to the fact that in this situation the employee will not be able to fully relax, because, while on vacation at his main place of work, he will work part-time, and vice versa (letter of Rostrud dated 08.05.2009 No. 1248-6-1).
If an employee was granted leave in advance and after that he leaves, it turns out that he received a larger amount of vacation pay. Vacation pay for unworked vacation days is recognized as an employee's debt to the employer.
Unfortunately, the Labor Code does not say how to calculate the vacation days that the employee took off in advance. Therefore, you can use the calculation method given in clause 35 of the Rules on Regular and Additional Leaves approved by the NCT of the USSR on 30.04.30 No. 169. This document is still valid in part that does not contradict Labor Code RF.
So, first you need to determine the number of months worked by the employee in the working year, on account of which annual paid leave was granted. Please note: only fully worked months are included in the calculation. If the month is not fully worked out, you need to act like this. Remaining up to 14 calendar days inclusive is excluded from the calculation, and the balance of 15 calendar days and more is rounded up to a full month.
Example 1
Manager of Segment LLC D.Yu. Petrov on March 31, 2010 resigns of his own free will. In February 2010, the employee was on annual paid leave for 28 calendar days. The working year for granting leave is from November 13, 2009 to November 12, 2010.
It turns out that in the working year the employee worked 4 months and 18 days. To calculate the amount of deductions, the number of months worked according to the rounding rules will be equal to 5.
Next, you should determine the number of vacation days for the months worked based on the calculation of 2.33 days per month (28 days: 12 months) (Rostrud letters dated 07.26.2006 No. 1133-6 and dated 06.23.2006 No. 944-6). By multiplying the number of days received by the average daily earnings, the amount of vacation pay due to the employee for the months worked is determined.
The overpaid amount is determined as the difference between the actually paid vacation pay and the amount of vacation pay for the months worked.
When determining the number of calendar days of unused vacation payable when calculating compensation for unused vacation, their rounding is not provided for by law.
Therefore, if an organization decides to round up, for example, to whole days, this should be done not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated 07.12.2005 No. 4334-17)
Overpayment can be deducted from wages
The employer has the right to withhold the debt of the employee from his salary. This allows Art. 137 of the Labor Code of the Russian Federation. It says that deductions from the employee's wages to pay off debts to the employer can be made, among other things, to return excessively received vacation pay for unworked vacation days. However, the employer may not always use this provision of the Code. Withholding is not possible if the employee leaves for one of the following reasons:
An employee's refusal to transfer to another job when such a transfer is necessary for him in accordance with a medical report or the employer does not have an appropriate job (clause 8, article 77 of the Labor Code of the Russian Federation);
Liquidation of an organization or reduction in the number or staff (clauses 1 and 2 of article 81 of the Labor Code of the Russian Federation);
Change of the owner of the organization (in relation to the head, his deputies and chief accountant) (clause 4 of article 81 of the Labor Code of the Russian Federation);
Conscription into the army (clause 1 of article 83 of the Labor Code of the Russian Federation);
Restoration of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);
Inability to work on a medical report (clause 5, article 83 of the Labor Code of the Russian Federation);
Death of an employee (clause 6, article 83 of the Labor Code of the Russian Federation);
Extraordinary circumstances - war, catastrophe, etc. (Clause 7, Article 83 of the Labor Code of the Russian Federation).
The employer has the right to recover from the employee's salary no more than 20% of the amount of payments due to him (Article 138 of the Labor Code of the Russian Federation). At this stage, the question arises: is it necessary to reduce wages by personal income tax accrued from payments due to the employee in order to determine the maximum amount of deduction? There are two positions on this.
Supporters of the first position believe that wages should be reduced by the amount of personal income tax. This view is based on the provisions of Art. 99 federal law dated 02.10.2007 No. 229-FZ "On Enforcement Proceedings". It states that the amount of deductions from wages and other types of income of the debtor is calculated from the amount remaining after taxes were withheld.
However, in Art. 138 of the Labor Code of the Russian Federation, we are talking specifically about the wages due to the employee, and nothing is said about the fact that the amount of deduction is determined minus personal income tax. And it is incorrect to apply the norms of the Federal Law of October 2, 2007 No. 229-FZ in this situation. After all, this law is intended to determine the conditions and procedure for the enforcement of judicial acts. This is what the proponents of the second position think.
Do taxes and insurance premiums need to be adjusted?
At the time of payment of vacation pay, the tax agent was obliged to withhold personal income tax from the employee's income. If the amount of vacation pay is recognized as excessively issued, it turns out that the employer withheld from the employee's income and personal income tax in larger amount. Therefore, when withholding excessively paid vacation pay, it is necessary to return the excessively withheld personal income tax to the employee. To do this, the employee must write an application for a refund (clause 1, article 231 of the Tax Code of the Russian Federation). A similar position is shared by specialists of the Ministry of Finance of Russia (letter No. 03-04-05-01/5 dated January 14, 2009).
However, if the leave granted in advance and the dismissal of the employee fall within the same tax period, the accountant can adjust the personal income tax at the time of settlement with the employee. To do this, it is necessary to calculate the tax after the overpaid vacation pay is deducted from the salary.
From the amount of vacation pay, the company had to accrue not only personal income tax, but also insurance premiums to off-budget funds. Do I need to recalculate them if part of the vacation pay turned out to be excessively issued. In our opinion, in this case no need to recalculate. Just in the period of dismissal, insurance premiums will be charged on the amount of the employee's income, taking into account the amounts withheld.
In addition, the company will not have to submit updated calculations to off-budget funds. The fact is that such calculations need to be submitted only if the accountant finds errors in the reports already submitted, leading to an underestimation of the base for calculating contributions (clause 1, article 17 of the Federal Law of July 24, 2009 No. 212-FZ). But in our case, in the period of accrual of contributions for the amount of vacation pay, the company did not make a mistake. This means that there is no need to submit additional calculations.
It should be noted that specialists of the Ministry of Finance of Russia reasoned in a similar way when considering the issue of adjusting the UST and contributions to Pension Fund when withholding excessively issued vacation pay from the employee's income (letter of the Ministry of Finance of Russia dated 06.03.2007 No. 03-04-06-02 / 38). The tax authorities also adhered to the same position (letter of the Federal Tax Service of Russia for Moscow dated May 29, 2008 No. 21-18 / 461).
With regard to income tax, the amount of withheld vacation pay must be included in non-operating income (letter of the Federal Tax Service of Russia for Moscow dated January 11, 2007 No. 21-08 / 001467). At the same time, the company does not have to submit any revised declarations to the tax authorities. After all, as already noted, no mistake was made (Article 54 of the Tax Code of the Russian Federation).
Attention
When reflecting in accounting the return of excessively received amounts for vacation for the specified amount, the debit of the accounts for recording production costs and the credit of the account for recording settlements with personnel for wages are reversed. The amount of funds received by the cash desk of the organization from the dismissed employee is reflected in the debit of the cash register account in correspondence with the credit of the account for accounting for settlements with personnel for wages (letter of the Ministry of Finance of Russia dated 10.20.2004 No. 07-05-13 / 10)
Accounting
In accounting, the withholding of overpaid vacation pay amounts is reflected in reversal entries. Such a procedure was proposed by the Ministry of Finance of Russia in a letter dated 10.20.2004 No. 07-05-13 / 10.
Example 2
Let's continue example 1. Let's say the amount of overpaid vacation pay was 4000 rubles. Salary for March 2010 - 25,000 rubles. Excessive vacation pay is deducted from wages. The organization has decided that maximum size deductions from the wages of employees is determined without taking into account personal income tax. The maximum amount withheld was 5,000 rubles. (25,000 rubles x 20%). Therefore, the entire debt of the employee can be deducted from his salary.
Postings will be made in accounting:
- 25,000 rubles. - salary accrued for March 2010;
Debit 70 Credit 68
- 2730 rubles. [(25,000 rubles - 4,000 rubles) x 13%] - personal income tax withheld;
Debit 20 (26, 44, etc.) Credit 70
- 4000 rub. - reversal for the amount of vacation pay for unworked vacation days;
Debit 70 Credit 50
- 18 270 rubles. (25,000 rubles - 4,000 rubles - 2,730 rubles) - wages were paid taking into account the amounts withheld;
Debit 20 (26, 44, etc.) Credit 69-1
- 609 rubles. [(25,000 rubles - 4,000 rubles) x x 2.9%] - contributions to the FSS of Russia have been accrued;
Debit 20 (26, 44, etc.) Credit 69-2
- 4200 rub. [(25,000 rubles - 4,000 rubles) x 20%] - contributions to the Pension Fund have been accrued;
Debit 20 (26, 44, etc.) Credit 69-3-1
- 231 rubles. [(25,000 rubles - 4,000 rubles) x x 1.1%] - contributions to the FFOMS are accrued;
Debit 20 (26, 44, etc.) Credit 69-3-2
- 420 rubles. [(25,000 rubles - 4,000 rubles) x x 2.0%] - contributions to the TFOMS are accrued;
Debit 20 (26, 44, etc.) Credit 69-4
- contributions to the FSS of Russia were accrued for compulsory insurance from accidents at work and occupational diseases.
Collection through the court
If the employer cannot fully withhold the debt from the employee's salary and the employee refuses to voluntarily pay it off, the organization may go to court. In this situation, unearned vacation pay amounts will be regarded as unjustified enrichment of the employee. And such amounts are subject to return on the basis of Art. 1102 of the Civil Code of the Russian Federation.
Note that Art. 1109 of the Civil Code of the Russian Federation, it is established that wages and equivalent payments provided to an individual as means of subsistence, non-refundable. However, holiday pay is not salary. It recognizes remuneration for work (Article 129 of the Labor Code of the Russian Federation). A similar point of view is shared by Rostrud (letter dated December 24, 2007 No. 5277-6-1).
Example 3
Let us use the conditions of Example 1 and assume that the amount of excessively received vacation pay was 10,000 rubles, and only 5,000 rubles were retained from wages. At the same time, the employee refused to voluntarily repay the balance of the debt to the employer in the amount of 5,000 rubles. The management of the organization decided to recover the amount of excessively received vacation pay in court.
Posting in accounting:
Debit 76 Credit 70
- 5000 rub. - reflects the debt on overpaid vacation pay.
In tax accounting, overpaid vacation pay amounts that were not returned to the employer cannot be recognized as an expense. The fact is that this expense is not justified (clause 1, article 252 of the Tax Code of the Russian Federation). This position is held by the tax authorities (letter of the Federal Tax Service of Russia for Moscow dated June 30, 2008 No. 20-12 / 061148).
However, from the clarifications of the Ministry of Finance of Russia, contained in the letter dated December 10, 2009 No. 03-03-06 / 1 / 799, it can be concluded that it is not necessary to adjust expenses for the amount of overpaid vacation pay.
At the moment when the company returns the overpaid vacation pay, they will be included in non-operating income (letter of the Federal Tax Service of Russia for Moscow dated January 11, 2007 No. 21-08 / 001467).
Attention
The Ministry of Finance of Russia, in a letter dated December 10, 2009 No. 03-03-06 / 1 / 799, explained that the resulting wage arrears for unworked vacation days, for which the limitation period has expired, cannot be taken into account for profit tax purposes
An employee has the right to work for one employer after six months (Article 122 of the Labor Code of the Russian Federation). But due to various circumstances, he may need rest days earlier. Is it possible to take vacation in advance for a period that has not yet been worked out? We will answer this question in our article.
Vacation in advance
Every year, each employee can count on 28 days of paid leave. In the first year of work, if the employer does not object, the employee can go on vacation after working for less than 6 months. Vacation will be "advance" and in the case when, after six months of work, rest is provided for more than 14 days.
After the first year, the employee will go on vacation according to the schedule approved by the organization. The employer can meet halfway and provide him with leave in advance for the next year, but it must be borne in mind that not a single day has been worked out by the employee to receive such leave.
When you can not refuse to grant leave in advance
Granting leave for a period not yet worked out is the right of the employer. In some situations, the question “is it possible to give leave in advance?” Does not arise, since the employer is obliged to provide it to certain categories of persons, despite the unworked six-month period. According to the Labor Code of the Russian Federation, such persons include:
- employees under the age of 18,
- employees who have adopted a child under 3 months old,
- employees who wrote an application for leave in advance before maternity leave, or immediately after it,
- employees who wish to take a vacation during their spouse's maternity leave (Article 123 of the Labor Code of the Russian Federation),
- one of the parents raising a disabled child under 18 (Article 262.1 of the Labor Code of the Russian Federation),
- part-time workers whose vacation coincides with the vacation at the main place of work (Article 286 of the Labor Code of the Russian Federation).
Vacation granted in advance: possible consequences
The main risk of the employer who provided such leave is the situation when the employee took the leave in advance and quit without having completed the required period. As a result, the money paid in the form of vacation pay is lost for the enterprise. How to proceed in such a case?
The employer may deduct for the vacation used in advance upon dismissal of the employee. The debt for unworked paid vacation days is deducted from the earnings of the person leaving (clause 2 of section 1 of the Rules on holidays, approved by the USSR Tax Code of April 30, 1930 No. 169, which are still in force in the part that does not contradict the Labor Code of the Russian Federation). To do this, it is necessary to issue an order to withhold the appropriate amount before paying the employee who is leaving the calculation.
But such a measure is not always applicable.
Firstly, the Labor Code of the Russian Federation limits the amount of deductions from the salary - it cannot exceed 20% of its amount (Article 138 of the Labor Code of the Russian Federation). If the amount of "advance" vacation pay is greater, it will not work to keep it completely. The employee can return this money voluntarily, but only if he himself agrees to this. When the employer applies to the court, as a rule, the decision is made in favor of the employee.
Secondly, it is impossible to make deductions for vacation in advance upon dismissal for such reasons as:
- liquidation of the enterprise (clause 1 of article 81 of the Labor Code),
- downsizing / staff (clause 2 of article 81 of the Labor Code),
- change of the owner of the property of the enterprise (clause 4 of article 81 of the Labor Code),
- refusal of the employee to transfer to another job, necessary for him for medical reasons, or in the absence of such work from the employer (clause 8, part 1, article 77 of the Labor Code),
- conscription of an employee for military or alternative civil service(clause 1 of article 83 of the Labor Code),
- reinstatement of an employee who previously worked at this place, by a court decision, or the state labor inspectorate (clause 2 of article 83 of the Labor Code),
- recognition of the inability of the employee to work on the basis of a medical report (clause 5 of article 83 of the Labor Code),
- an emergency situation in which work is impossible (war, natural disaster, epidemic, etc.) (clause 7, article 83 of the Labor Code).
- the death of an employee, or his recognition as missing (paragraph 6 of article 83 of the Labor Code).
How to calculate vacation in advance
"Advance" vacation pay is calculated in the same way as when paying for a regular regular vacation - from the actual accrued salary and hours worked (Article 139 of the Labor Code of the Russian Federation):
- the average daily earnings are determined - the amount of wages for the months worked is divided by the number of months of work, and then divided by 29.3;
- the amount of vacation pay is calculated - the average daily earnings are multiplied by vacation days;
- Personal income tax is withheld from the amount of vacation pay received.
Example 1
An employee who got a job on 04/01/2017 took a vacation from 09/01/2017 for 14 calendar days. The amount of salary for 5 months worked - 150,000 rubles.
Average daily earnings = 150,000 rubles. : 5 months : 29.3 \u003d 1023.89 rubles.
Vacation pay = 1023.89 rubles. x 14 days = 14,334.46 rubles.
Amount on hand = 14,334.46 rubles. - 13% \u003d 12,471.46 rubles.
Example 2
Employee for family circumstances On 09/01/2017, paid leave was granted for 28 days, relating to the period from 11/01/2017 to 10/01/2018. The amount of vacation pay received is 25,000 rubles. On 10/31/2017, an employee leaves of his own free will, while he is entitled to a calculation of 28,000 rubles. What will be the amount of deduction from the employee for vacation in advance upon dismissal?
Since all 28 days of vacation have not been worked out, you need to withhold the entire amount of vacation pay. But upon dismissal of their own free will, the employer can withhold no more than 20% of the calculation amount, so the amount to be withheld will be: 28,000 rubles. x 20% = 5600 rubles.
The law allows the opportunity to take vacation in advance - before the employee accumulates a sufficient number of days. However, after sending an employee on vacation in advance, many questions arise. Let's deal with the most frequent in the article.
From this article you will learn:
- under what conditions is advance leave granted;
- how to calculate the amount of deduction after advance payment;
- how to calculate unused days holiday vacation in advance.
Any employee has the right to take a vacation in advance - that is, even when he has not yet "earned" a sufficient number of days of rest. However, in this case, upon dismissal, a debt for unworked vacation may arise, and the employer may withhold only 20% of the salary upon dismissal. Let's consider how to properly provide vacation in advance, how to count unworked days, and also what to do if it is impossible to withhold unearned vacation pay.
When is advance leave allowed?
An employee of any Russian company has the right to go on vacation after six months of work in the organization, but if the employer does not mind, this can be done earlier.
Marina KOROTINA, Chief Specialist of the Department for Legal Support and Human Resources of the ANO "Transport Directorate of the 2018 FIFA World Cup in Russian Federation" (Moscow)
Do not indicate in the employment contract that the main leave is provided to the employee in proportion to the hours worked
If you fix in the employment contract the provision that paid holidays are provided in proportion to the hours worked, this will infringe on the rights of the employee. The right to leave for the first year arises for the employee after six months of continuous work in the company. However, by agreement of the parties, paid leave can be used earlier, and in full (Article 122 of the Labor Code of the Russian Federation). In addition, the employer is obliged to provide certain categories of employees with annual leave upon application, including in advance. The only exception is additional leave for work with harmful or dangerous working conditions, which is provided only for work experience in such conditions (part three of article 121 of the Labor Code of the Russian Federation).
According to labor law, for the second and subsequent years of work, vacation is provided strictly according to the schedule. Experts do not recommend specifying in the employment contract the condition for granting leave in proportion to the hours worked - this will infringe on the rights of the employee. The only exception to the rule under which the right to leave arises after six months of continuous work is the provision additional leave for work with harmful or dangerous working conditions.
- minor citizens;
- women and single men with two or more children under the age of 12;
- one of the parents raising a disabled child under the age of 18.
By general rules In the event of dismissal of an employee, the employer has the right to withhold payments for unworked leave from the salary. But there are a number of grounds for terminating an employment contract, under which it is forbidden to withhold unearned vacation pay:
Calculation of unworked vacation days provided in advance
To calculate the number of months of work, surpluses that are less than half a month, for example, 13 days, must be excluded from the calculation. Days that make up more than half a month are rounded to the nearest full month.
The number of vacation days earned can be fractional - in this case, rounding is allowed only in favor of the employee. After the calculations, it is necessary to determine the number of vacation days not worked by the employee.
Example: Petrov leaves the company on 04/30/2016. For the working year (10/25/2015 - 10/24/2016) the employee used 28 calendar days annual leave in March 2016. Petrov worked for the company for 6 months and 6 days. According to the counting rules, 6 days are discarded, and the result is 6 months seniority giving the right to the next vacation in the current year. Petrov earned the right to 13.98 calendar days of vacation (28/12 × 6), which is rounded up to 14 days. It turns out that Petrov used, but did not work out 14 calendar days of annual leave (28 - 14).
Calculation of the amount of deduction after granting leave in advance
The amount of unearned vacation pay is calculated by the formula:
When calculating the amount of deductions, the employer must remember that it should not exceed 20% for each payment of wages remaining after withholding personal income tax. To withhold the required amount, the employer must issue an order in any form indicating the data of the employee, the amount of working time worked by him and the number of calendar days of vacation provided in advance. The employee must be familiarized with the document under the signature.
It is important that when withholding amounts for unworked vacation days when providing it in advance, the employer should not obtain the consent of the employee. If the amount of the debt significantly exceeds the amount that the employer can withhold, you can offer the employee to pay off the balance of the amount on a voluntary basis. In this case, this will not be considered a deduction, but an independent disposal of one's income.
At the time of payment of vacation pay when providing leave in advance, the employer withholds personal income tax from the entire amount. If unearned vacation pay is deducted from the employee's salary, it turns out that personal income tax is withheld from income in a larger amount. Since the employee received the “unearned” vacation pay after the vacation was granted in advance according to the law, he has the right to return the overpaid personal income tax - the tax calculated from the last payment to the employee is reduced by this amount. Earlier we wrote: "(No. 2, 2016).
Return of unearned vacation pay through the court
If the amount of debt to the organization is more than 20% of the employee's salary, and at the same time the employee refuses to voluntarily pay the required amount, the employer will not be able to return it through the courts. collect necessary funds possible only in cases provided for by law. Also, unearned vacation pay in the event that vacation is granted in advance cannot be considered unjust enrichment if there was dishonesty on the part of the employee or a counting error.
Attached files
- Memo to the employee in case of vacation (form).doc
- Regulations on holidays (form).doc
- Leave order (form).doc
Available only to subscribers
- Memo to an employee in case of vacation (sample).doc
- Vacation regulations (sample).doc
- Leave order (sample).doc