What is the maximum amount of overtime per year. Everything you need to know about overtime work: the rights and obligations of the employee and the employer. Calculation of wages for overtime work

In an unstable financial and economic climate, many employers seek to optimize the cost of labor resources. To this end, staff reductions are under way.

Meanwhile, the tasks that were performed by the released workers remain. Entrepreneurial employers shift them onto the shoulders of employees who have not been laid off, and do not establish any additional payments for performing these tasks. Such actions are illegal, since employees have to work more than the time allowed by the norms in order to be in time. Such activity of employees is called overtime. Let's consider its features.

Definition

According to Article 99 of the Labor Code of the Russian Federation, overtime work involves the performance of duties by an employee beyond the duration of the daily shift established for him by the norms. At some enterprises, a summarized record of time is kept. In such cases, according to the Labor Code of the Russian Federation, overtime work is considered to be the performance of duties in excess of the normal number of hours for billing period. The norm is 40 hours a week.

Special categories

For some workers in labor law reduced hours of operation:

For minors - 24-35 hours a week.
For persons whose working conditions are harmful (3-4 degrees) or dangerous - no more than 36 hours / week. Estimate working conditions carried out by a special committee. Based on the results of the analysis, an act is drawn up.
For disabled people of 1-2 groups - no more than 35 hours / week.

Reduced shifts are also established for pedagogical and medical workers, women working in the North and in the territories equated to it.

Accordingly, for all these categories of employees, overtime work is recognized as professional activity carried out in excess of the established norms. It requires an additional payment.

Important Points

It should be said that the involvement of employees in overtime work is carried out at the initiative of the employer. Employees are entitled to own will stay at the enterprise. However, such cases are not considered overtime work.

The employer must organize an accurate record of the time during which the citizen is at the enterprise. It must be remembered that overtime work should not exceed 120 hours per year.

Legislation

The Labor Code does not allow forced involvement in overtime work. However, the law provides for a number of cases when the employer has the right to detain his employees. They are enshrined in part 2 of Article 99 of the Labor Code. According to the norm, overtime work is allowed when:

The need to complete a started production operation, the completion of which was not possible due to an unforeseen delay during the shift. Overtime work in this case is justified if its non-fulfillment can lead to damage or destruction of property (including property belonging to third parties, but being in the custody of the employer), municipal or state property, creating a threat to the health or life of the population.
Carrying out repairs or restoration of mechanisms, structures, if their failure can lead to the termination of work of most of the personnel of the enterprise.
Non-appearance of the rotating employee to continue labor activity, which cannot be interrupted. In such cases, the employer must promptly take measures to replace the working citizen with another employee.

In all these cases, the employer must obtain consent from employees for overtime work. In this case, the opinion of the trade union must be taken into account.

Exceptional Cases

Part 3 of Article 99 of the Labor Code establishes the circumstances under which overtime work is allowed without obtaining consent from employees:

Implementation of measures necessary to prevent an accident, catastrophe, eliminate their consequences.
Carrying out work aimed at eliminating unforeseen circumstances, as a result of which the normal functioning of the main (centralized) systems of gas, water, heat, electricity, communications, and transport is disrupted.
Implementation of measures due to the introduction of martial law or a state of emergency, urgent work in emergency situations. It's about, in particular, about floods, fires, other natural disasters, as well as other cases in which the life or health of the population is endangered.

The Labor Code provides for 2 options for compensating an employee for labor in excess of the established standards. The first way is increased payments.

Overtime is paid for the first 2 hours - at one and a half times, and for the next - at least twice. Specific amounts of payments can be fixed by a collective agreement, an internal regulatory act of an enterprise, an employment contract.

Unfortunately, it is not defined in the TC single order calculation of overtime pay. Therefore, enterprises install it independently, taking into account the specifics of their activities. Some organizations calculate the cost of one hour of overtime work based on the amount of earnings for the month in which the employee performed it, and the number of hours provided for this employee, according to the production calendar. At other enterprises, the calculation is based on the monthly salary and the average monthly number of hours.

As a result, when using a different procedure for calculating overtime pay, you can get completely different amounts. In order to avoid conflicts, it is advisable to fix the selected calculation rules by an internal normative act.

Cumulative time tracking

When using it, it is often difficult to determine which work is overtime and which is rationed. Accordingly, there are difficulties in calculating compensation. To solve emerging problems, one should be guided by the Recommendations on the application of the flexible working time regime in institutions, organizations, and enterprises of the national economic sectors, approved in 1985.

In accordance with clause 5.5 of this regulatory act, when overtime work is performed by citizens transferred to a flexible work regime, hourly work is recorded in total relative to the established billing period (month, week). Accordingly, only those hours worked in excess of the norm provided for a particular period will be recognized as irregular.

Accordingly, overtime work lasting 2 hours will be paid at the rate of one and a half, and the following hours in excess of the norm - at double.

The practice of applying the rules

Based on the above information, the following calculations can be made. Suppose a citizen worked 43 hours overtime for 20 days of the reporting period. Of these, 40 hours will be compensated in one and a half times, and the remaining 3 - in double.

The rules enshrined in paragraph 5.5 of the Recommendations were recognized as correct by the RF Armed Forces, despite the fact that the Ministry of Health gave slightly different explanations. Thus, in the Letter of 2009, the department recommended that overtime work be calculated at the end of the reporting period. For example, if an employee worked 19 hours in excess of the norm, then 2 of them are paid at one and a half, and 17 at double the rate.

According to the general rules enshrined in activities on a non-working (including a holiday) day, it must be paid at a double rate. In practice, the question often arises - how to calculate earnings for a citizen involved in overtime work on a day off? Explanations on this matter are present in the Decree of the State Labor Committee of 1966.

According to the regulation, when calculating hours worked overtime on a weekend or holiday, they should not be taken into account, since this labor activity is already paid at a double rate.

Additional rest days

According to the provisions of Article 152 of the Labor Code, an employee may refuse monetary compensation. Instead, the employee can take additional rest. Its duration should not be less than the time worked overtime.

Nuances

Special rules apply to:

Employees, contractors, subsidiaries of FIFA.
Football confederations and national associations.
Organizing Committee "Russia-2018" and its subsidiaries.

If the activities of employees of these organizations are related to the implementation of sports events, overtime work is compensated for by additional rest. Its duration should not be less than the time worked in excess of the norm established by the plans. Another procedure can be fixed exclusively in the employment contract.

With regard to these employees, the procedure provided for by Article 152 of the Labor Code does not apply.

Who can work like this?

The legislation contains a list of persons whose involvement in labor activity in excess of the established norms is not allowed. It is defined in part 5 of article 99 of the Labor Code. According to the norm, the employer is not entitled to involve pregnant employees and minors in overtime work. At the same time, athletes under the age of 18, creative workers of the media, cinematographic organizations, video and television crews, theater / concert institutions, circuses, as well as other persons involved in the performance / creation of works, are an exception. A complete list of relevant positions and professions is approved by government decree No. 252 of 2007.

Involvement in overtime work of women with minor (up to 3 years) dependents, disabled people is allowed only with their consent. It is given in writing. At the same time, these citizens must have a medical certificate stating that overtime work is not prohibited to them for health reasons.

Women with minors under 3 years old, as well as disabled people, have the right to refuse to work above the norm. This possibility must be explained to them by the employer against signature.

Similar rules for engaging in overtime work are established for:

Single parents raising children under 5 without a spouse.
Employees with a dependent child with a disability.
Workers caring for sick relatives.

Employee Consent

At some enterprises, the content of the employment contract includes a condition that, if necessary, a citizen, on the basis of an order, will be involved in overtime work, including on holidays/weekends, as well as at night. The leaders of such organizations believe that by fixing this clause in the contract, they have already automatically taken the consent of the employees. However, this is not the case.

Such a clause cannot be fixed in an employment contract. Every time when it becomes necessary to involve a citizen in overtime activities, it is necessary to obtain his written consent. This position is also supported by case law.

A notice is sent to the employee to obtain consent. It gives the reasons for the need for overtime work. When notifying women with children under 3 years of age, fathers/mothers raising a child without a spouse/spouse, employees with disabled or disabled children, they must be informed of the possibility of refusal.

What if the employee does not give consent?

If an employee refuses to work overtime, the employer will have to find a replacement. At the same time, the law prohibits the application of disciplinary sanctions to an employee who has not given consent. Otherwise, they will be illegal.

These rules, however, do not apply in cases where the consent of the employee is not required.

Union involvement

Involvement of personnel to work overtime is carried out taking into account the position of the elected body trade union organization, if the relevant case is not regulated by the norms of the Labor Code. The rules for the participation of the trade union in resolving the issue are fixed by Article 372 of the Code. Let's consider them.

Before accepting an order to involve an employee in overtime work, the employer sends his project with justification to the trade union. The elected body of this organization draws up a reasoned opinion within five days and submits it to the employer.

If the trade union disagrees with the draft order, the employer is sent a proposal to change it. The employer, in turn, may agree with him or within three days must hold a joint meeting with the trade union to reach a consensus.

If a mutually acceptable solution is not found, the disagreements must be formalized in a protocol. After that, the employer has the right to issue an order to attract staff to work overtime. This act can be challenged in the State Labor Inspectorate or in court.

There is no unified form of this document. Therefore, the enterprise needs to develop its own form, taking into account the requirements of the law for such documents. The order must specify:

Full name and position of the employee.
Reason for overtime work.
Start date of activity.
Employee consent information.

The employee gets acquainted with the order and signs.

The document can also provide the amount and procedure for remuneration of overtime work, if this is enshrined in a local legal document.

The amount of payment may be established by agreement of the parties.

In some cases, the employer issues a separate order for overtime compensation. This may be due to the fact that its type was not determined before the start of processing.

additional information

Overtime hours must be shown on the time sheet. For this, the code "C" or "04" is provided in the document. Under this code indicate the number of processed hours and minutes.

If an employee has a time wage, for each hour of the first 2 overtime hours 50% of the rate is added to the basic salary, and 100% for each subsequent salary.

If the payment is piecework, then the processing time, as well as products released within this period, must be paid according to the general rules, plus the procedure established for the time-based work regime applies.

If overtime work is performed at night, payment is made both for processing and for night work. The minimum surcharge for each irregular hour at night is 20% of the tariff or part of the salary.

The employee's written explanation may serve as proof of overtime work. In addition, waybills with appropriate marks and other supporting documents may be provided.

Is there an extra charge to be paid?

There is no single answer to this question. As established in Article 153 of the Labor Code, as compensation for overtime work, an employee may receive additional rest instead of increased pay. At the same time, there is no ban on paying rest days in the legislation. Consequently, the employer has the right, at its own discretion, to issue monetary compensation to the employee.

The procedure for providing rest

There are no clear rules in the legislation. However, paragraph 39 of the 2004 Supreme Court Resolution clarifies that the unauthorized use vacation days and time off is considered absenteeism and may be the basis for terminating the contract. In this case, the provisions of Art. 81 TK.

Unauthorized use of rest days is not recognized as absenteeism if the employer, in violation of the legal obligation, refused to provide the employee with them, and the time for their use did not depend on the discretion of the employer. Failure to provide additional rest for overtime work is unlawful if the employee has chosen it as compensation.

Finally

Engaging an employee to work overtime is considered illegal if his consent is absent. Exceptions are cases expressly provided by law. In addition, under certain circumstances it is necessary to seek the opinion of the elected body of the trade union. The health status of the worker is also important. The employee should not have contraindications.

AT without fail the employee must be compensated. This may be a cash payment or additional days of rest. Evasion of the employer from the performance of this obligation is unlawful. The employer, at its discretion, can provide both material compensation and rest.

Overtime is considered to be work performed by an employee in excess of the length of working time established for him, provided for by the internal labor regulations. At the same time, work is recognized as overtime only in those cases when it is performed at the suggestion, order or with the knowledge of the employer.

The Labor Code provides for three different grounds for applying overtime: the employee's consent; the prescription of the law; condition of the collective agreement, agreement.

By virtue of the law, overtime work is allowed only in the following cases: in the production of work to prevent public disaster, industrial accident; in the production of public necessary work for water supply, gas supply, heating, lighting, transport.

Overtime work is not allowed: pregnant women; workers under 18; workers studying on the job in general education educational institutions; exempted from overtime work in accordance with the medical report.

Overtime work must not exceed 4 hours for each employee for two consecutive days and 120 hours per year. AT given quantity does not include work carried out by virtue of the prescription of the law. The main compensation for working overtime is additional pay. By agreement with the employer, the employee may also be granted another day of rest.

Women with children aged 3 to 14, as well as disabled people, can be involved in overtime work with their consent, while disabled people - only when such work is not prohibited in accordance with a medical report.

66. Time relax – the time period established by law, during which the employee is free from fulfilling his job duties and is free to use it as you wish. There are two ways to regulate the length of rest time: indirect and direct. The indirect method consists in the legislative limitation of the duration of working hours, the direct one in the legislative fixing of specific types of rest time. Types of rest time: 1 Break during the working day (break for rest and meals - at least 20 minutes, no more than 4 hours). 2 Interday (everyday) breaks are breaks in work between the end of one working day and the beginning of the next. There must be at least twice the duration of work. 3 Weekly rest days - days off. (can be used to compensate for shortfalls up to a weekly rate) Compensation for work on a day off can be provided in the form of another day of rest or monetary compensation not lower than the 2nd compensation. 4 Holiday non-working days. They are planned in advance in the work schedule and are included in the monthly norm of working time.

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Questions

Who conducts a special assessment of working conditions?

A special assessment of working conditions is carried out by an organization whose main activity is a special assessment of working conditions (the presence of this type of activity in the Charter). The organization must have at least 5 experts working under an employment contract and having an expert certificate. in an organization as structural unit there must be an accredited laboratory for measurements and studies of harmful and (or) dangerous production factors(for example, our organization has the right to conduct special evaluation working conditions).

Good afternoon, you can find out the price for a special assessment of working conditions for one workplace?

Good afternoon, can I find out the price for one workplace

How are the results of a special assessment of working conditions taken into account?

The results of a special assessment of working conditions are taken into account when paying insurance premiums to the Pension Fund, in order to provide guarantees and compensations to employees, as well as in other procedures in the field of labor protection (providing employees with funds personal protection, organization of medical examinations, assessment of the level professional risks, investigation of industrial accidents and occupational diseases, etc.).

Is it necessary to take into account the time of actual employment in such work when assigning additional pay for work in harmful working conditions?

No, it doesn `t need. Additional payment for work in hazardous working conditions is carried out without taking into account the time the employee is employed in this work (Article 147 of the Labor Code), since the law does not contain regulatory guidelines for accounting for actual employment. The employer is obliged to pay increased wages for hazardous work in the amount of at least four percent of the salary, regardless of how many hours the employee worked in hazardous conditions. The specific size of the increase in wages is established by the employer, taking into account the opinion of the trade union. The time worked in hazardous conditions is taken into account when providing milk, additional leave and early retirement.

Is it necessary to conduct a special assessment of working conditions?

All employers are required to conduct a special assessment of working conditions at all workplaces, with the exception of workplaces of homeworkers, teleworkers and workers who have entered into labor Relations with employers - individuals who are not individual entrepreneurs

Electrical safety and lighting standards

Is it possible to use the LPP10 lamp with open lamps indoors for the manufacture of PVC windows. Wooden ceiling and concrete floor.

Working hours - 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 of time that, in accordance with this Code, other federal laws and other regulatory legal acts Russian Federation refer to working time.

Normal working hours may not exceed 40 hours per week.

The procedure for calculating the norm of working time for certain calendar periods (month, quarter, year), depending on fixed duration working time per week is determined by the federal executive body that performs the functions of developing public policy and legal regulation in the sphere of labor.

(Part three was introduced by Federal Law No. 157-FZ of July 22, 2008)

The employer is obliged to keep records of the time actually worked by each employee.

Article 92. Reduced hours of work

Reduced working hours are set:

for employees under the age of sixteen - no more than 24 hours a week;

for employees aged sixteen to eighteen years - no more than 35 hours per week;

for employees who are disabled people of group I or II - no more than 35 hours a week;

for workers employed in jobs with harmful and (or) dangerous working conditions - no more than 36 hours a week in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

(part one as amended by Federal Law No. 90-FZ of 30.06.2006)

Students working hours educational institutions under the age of eighteen, working for school year in their free time from studies, cannot exceed half of the norms established by the first part of this article for persons of the corresponding age.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

This Code and other federal laws may establish reduced working hours for other categories of employees (pedagogical, medical and other employees).

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 93. Part-time work

By agreement between the employee and the employer, part-time work (shift) or part-time work week can be established both at the time of employment and subsequently. The employer is obliged to establish a part-time working day (shift) or part-time working week at the request of a pregnant woman, one of the parents (guardian, custodian) who has a child under the age of fourteen (a disabled child under the age of eighteen), as well as a person exercising caring for a sick family member in accordance with a medical report issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

When working on a part-time basis, the employee is paid in proportion to the time worked by him or depending on the amount of work performed by him.

Work on a part-time basis does not entail any restrictions for employees on the duration of the annual basic paid leave, the calculation of seniority and other labor rights.

Article 94. Duration of daily work (shift)

The duration of daily work (shift) cannot exceed:

for employees aged fifteen to sixteen years old - 5 hours, for those aged sixteen to eighteen years old - 7 hours;

for students educational institutions, educational institutions of primary and secondary vocational education those who combine study with work during the academic year, at the age of fourteen to sixteen years - 2.5 hours, at the age of sixteen to eighteen years - 4 hours;

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

for the disabled - in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

For workers employed in jobs with harmful and (or) dangerous working conditions, where reduced working hours are established, the maximum allowable duration of daily work (shift) cannot exceed:

with a 36-hour work week - 8 hours;

with a 30-hour work week or less - 6 hours.

The collective agreement may provide for an increase in the duration of daily work (shift) in comparison with the duration of daily work (shift) established by part two of this article for employees employed in work with harmful and (or) dangerous working conditions, subject to the maximum weekly duration of the worker. time (part one of Article 92 of this Code) and hygienic standards of working conditions established by federal laws and other regulatory legal acts of the Russian Federation.

(Part three as amended by Federal Law No. 90-FZ of June 30, 2006)

Duration of daily work (shift) of creative workers of funds mass media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these employees approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, may be established by a collective agreement, a local normative act, an employment contract.

(Part four was introduced by Federal Law No. 90-FZ of 30.06.2006, as amended by Federal Law No. 13-FZ of 28.02.2008)

Article 95

The duration of the working day or shift immediately preceding a non-working holiday is reduced by one hour.

In continuously operating organizations and certain types work, where it is impossible to reduce the duration of work (shift) on the holiday day, processing is compensated by providing the employee with additional rest time or, with the consent of the employee, payment according to the norms established for overtime work.

On the eve of the weekend, the duration of work with a six-day working week cannot exceed five hours.

Article 96. Night work

Night time is from 22:00 to 06:00.

The duration of work (shift) at night is reduced by one hour without subsequent working off.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

The duration of work (shift) at night is not reduced for employees who have a reduced working time, as well as for employees hired specifically for work at night, unless otherwise provided by the collective agreement.

The duration of work at night is equalized with the duration of work in the daytime in cases where it is necessary for working conditions, as well as in shift work with a six-day working week with one day off. The list of the specified works can be determined by the collective agreement, the local normative act.

To work at night are not allowed: pregnant women; employees under the age of eighteen, with the exception of persons involved in the creation and (or) execution works of art, and other categories of employees in accordance with this Code and other federal laws. Women with children under the age of three, disabled people, employees with disabled children, as well as employees caring for sick members of their families in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation , mothers and fathers raising children under the age of five without a spouse, as well as guardians of children of this age, may be involved in night work only with their written consent and provided that such work is not prohibited to them for health reasons in accordance with medical advice. At the same time, these employees must be informed in writing of their right to refuse to work at night.

(as amended by Federal Laws No. 97-FZ of 24.07.2002, No. 90-FZ of 30.06.2006)

The procedure for work at night of creative workers of the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works professions, positions of these workers, approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, may be established by a collective agreement, a local normative act, an employment contract.

(as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 13-FZ of 28.02.2008)

Article 97. Work outside the established duration of working hours

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

The employer has the right, in accordance with the procedure established by this Code, to involve an employee in work outside the working hours established for this employee in accordance with this Code, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements, local regulations, employment contract (hereinafter referred to as the length of working time established for the employee):

for overtime work (Article 99 of this Code);

if the employee works on irregular working hours (Article 101 of this Code).

Article 98 - Federal Law of June 30, 2006 N 90-FZ.

Article 99. Overtime work

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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 summarized accounting of working time - in excess of the normal number of working hours for accounting period.

Involving an employee in overtime work by an employer is allowed with his written consent in the following cases:

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

2) in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause the termination of work for a significant number of employees;

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

Engaging an employer of an employee to work overtime without his consent is allowed in the following cases:

1) in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

In accordance with Federal Law No. 417-FZ of December 7, 2011, from January 1, 2013, in clause 2 of part three of this article, the words "water supply systems, gas supply, heating, lighting, sewerage," will be replaced by the words "centralized hot water supply systems, cold water supply and (or) water disposal, gas supply systems, heat supply, lighting, ".

2) when performing socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of water supply, gas supply, heating, lighting, sewerage, transport, communications;

3) in the performance of work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in conditions emergency, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that endanger the life or normal living conditions of the entire population or part of it.

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

It is not allowed to involve pregnant women, employees under the age of eighteen, other categories of employees in overtime work in accordance with this Code and other federal laws. Involvement in overtime work of disabled people, women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited by them for health reasons in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature.

The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year.

It is the employer's responsibility to ensure that each employee's overtime hours are accurately recorded.

Federal Law of June 30, 2006 N 90-FZ)

(see text in previous

(as amended by Federal Law No. 417-FZ dated 07.12.2011)

(see text in previous)

At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature.

Art. 99 of the Labor Code of the Russian Federation. Overtime work

Overtime work: we attract and correctly arrange

Article 99. Overtime work

Labor Code>PART THREE>Section IV>Chapter 15>Article 99. Overtime

Involving an employee in overtime work by an employer is allowed with his written consent in the following cases:

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

2) in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause the termination of work for a significant number of employees;

Engaging an employer of an employee to work overtime without his consent is allowed in the following cases:

1) in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

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

3) in the performance of work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases, endangering the life or normal living conditions of the entire population or part of it.

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

It is not allowed to involve pregnant women, employees under the age of eighteen, other categories of employees in overtime work in accordance with this Code and other federal laws.

Involvement in overtime work of disabled people, women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited by them for health reasons in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature.

The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year.

It is the employer's responsibility to ensure that each employee's overtime hours are accurately recorded.

Comments on Art. 99 Labor Code of the Russian Federation

1. Overtime work in accordance with part 1 of the commented article is: a) work performed by an employee outside of daily work, which takes place with daily accounting of working time and with summarized accounting of working time, when work is done according to schedules, shifts with a pre-established and mandatory for each day of work duration; b) work in excess of the normal number of working hours for the accounting period, when the actual duration of daily work is longer or shorter than the schedule, and these deviations are balanced (mutually offset) within the accounting period.

Work in excess of the established working hours, performed in the same organization on a part-time basis (at the initiative of the employee), cannot be considered as overtime (Article 97 of the Labor Code of the Russian Federation). By general rule is not overtime work and processing in excess of the established working hours of workers with irregular working hours (Article 101 of the Labor Code of the Russian Federation).

What is the maximum overtime for an employee?

However, in cases where these employees are not provided with additional paid leave, processing in excess of the normal working hours with the written consent of the employees is compensated as overtime work (part 1 of article 119 of the Labor Code of the Russian Federation).

2. Unlike Art. 54 of the Labor Code, the commented article does not give overtime work the character of exclusivity and does not require the permission of an elected trade union body for their production. The most important conditions for engaging in overtime work are recognized as the written consent of the employee to perform the named work and taking into account the opinion of the elected trade union body of this organization (except for the cases specified in paragraphs 1-5 of the commented article, when consideration of the opinion of such a body is not required).

3. Work is recognized as overtime, regardless of whether it is part of the employee's normal duties or he performs another task entrusted to him.

4. The basis for engaging in overtime work is the order (instruction) of the employer. If an appropriate order was not issued to involve an employee in overtime work, but it was established that there was an oral order from one of the managers (for example, a foreman), then the work performed should also be considered overtime.

5. Overtime work is paid at an increased rate: for the first 2 hours of work at least one and a half times, for subsequent hours - at least double the amount. Specific amounts of payment for overtime work may be determined by a collective agreement or an employment contract. At the request of the employee, overtime work instead of increased pay can be compensated by providing additional rest time, but not less than the time worked overtime (part 1 of article 152 of the Labor Code of the Russian Federation).

6. Like the Labor Code, the Labor Code of the Russian Federation establishes categories of workers who are prohibited from engaging in overtime work, but the circle of such workers has been significantly reduced. So, according to part 4 of the commented article, only pregnant women, workers under 18 years of age and other categories of workers are not allowed to work overtime in accordance with federal law.

Women with children under the age of 3 may now be allowed to do such work with their written consent and provided that overtime work is not prohibited for medical reasons. A similar procedure is established for the disabled. At the same time, both of them must be familiarized against receipt with their right to refuse overtime work. These guarantees also apply to employees who have children with disabilities or people with disabilities from childhood until they reach the age of 18; workers caring for sick members of their families in accordance with a medical report (part 3 of article 259 of the Labor Code of the Russian Federation); fathers raising children of the appropriate age without a mother, and guardians (custodians) of minor children (Article 264 of the Labor Code of the Russian Federation).

7. From the content of part 4 of the commented article it follows that the prohibition of overtime work is carried out only by federal law. However, for some categories of workers, the prohibition of overtime work is established by by-laws. These workers include people who are sick open form tuberculosis, workers engaged in the production of especially harmful substances, at work with radioactive substances and sources of ionizing radiation, at vibration-hazardous and other jobs. Before the adoption of the relevant laws in accordance with Art. 423 of the Labor Code of the Russian Federation, by-laws on the prohibition of overtime work retain their significance. In addition, restrictions on overtime work for certain categories of workers may be established by collective agreements and agreements. For example, ILO Recommendation No. 178 on night work states that workers employed in jobs involving special hazards or great physical and mental stress should not work overtime before or after a daily work shift that includes night work, except cases of force majeure, industrial accident or threat of its occurrence.

8. Overtime work should not exceed 4 hours for each employee for 2 consecutive days and 120 hours per year and are subject to accurate accounting in the time sheet and calculation wages(form N T-12 - see paragraph 2 of the commentary to article 91 of the Labor Code of the Russian Federation).

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

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

What kind of work is considered overtime?

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

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

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

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

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

Length of overtime

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

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

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

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

Who is not allowed to work overtime?

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

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

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

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

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

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

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

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

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

Question from practice.

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

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

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

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

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

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

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

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

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

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

In other cases, involvement in overtime work is allowed only with the written consent of the employee and taking into account the opinion of the elected body of the trade union primary organization(part 4 of article 99 of the Labor Code of the Russian Federation, ruling of the Supreme Court of the Russian Federation dated November 14, 2006 in case No. 4-В06-31).

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

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

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

Overtime pay

Overtime work is compensated by the employee with increased pay:

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

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

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

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

According to the general rule, work on a weekend or non-working holiday is paid at least twice the amount (Article 153 of the Labor Code of the Russian Federation). However, in clause 4 of Clarifications No. 13 / p-21 “On compensation for work in holidays"(approved by the Decree of the USSR State Committee for Labor, the Presidium of the All-Union Central Council of Trade Unions dated 08.08.1966 No. 465 / P-21 and operating in the part that does not contradict the Labor Code of the Russian Federation (Article 423 of the Labor Code of the Russian Federation)), it is indicated that when calculating overtime hours, work on non-working holidays, produced in excess of the norm of working hours should not be taken into account, since it is already paid in double the amount.

How to pay for overtime with summarized accounting of working hours

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

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

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

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

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

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

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

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