Is it possible to work while on vacation? Going to work during vacation. Making a temporary worker

From this article you will learn:

• Is it legal to work while on vacation?
• what penalties are provided for by the Labor Code for the presence of an employee at the workplace during vacation;
• what contract is required to be concluded with such an employee;
• is it possible to issue a part-time job for an employee during a vacation;

Often, employees, seeking to earn more, sacrifice their vacation for this. If during the holidays they enter into civil law contracts with other organizations or look for a part-time job at home, the employer may not worry about breaking the law, because he is not involved in such amateur performances. But there are cases when an employee who is on vacation, with the consent of the management, goes to work in his own organization and in the position he occupies. Is there a danger to the employer in such a situation? Let's look at it on the example of CJSC "M ...".

Essence of the question

HR Specialist of CJSC "M..." Lyudmila went to the sales department on the morning of the first of June and was very surprised to see manager Ilya there. The fact is that since May 28, this employee has been issued another vacation on schedule. To the question of the personnel officer about what he does at the workplace, Ilya replied: he agreed with the head of the department that he would perform an urgent task on vacation: he would control the stock of products in two warehouses of the organization. And the salary for this period will be received as a remuneration under a civil law contract.

At the written request of the employee monetary compensation you can replace the part of the vacation that exceeds 28 calendar days(Article 126 of the Labor Code of the Russian Federation)

Is it legal to work while on vacation?

After evaluating the situation, the HR director explained the following. The Labor Code does not contain a prohibition for an employee and an employer to conclude civil law contracts for the period of annual paid leave. Article 106 of the code states that rest time (including vacation) is time free from the performance of labor duties, which an employee can use at his own discretion. However, the very fact of his presence at the workplace during this period comes into conflict with the legal purpose of the leave.

Such a situation may well be of interest to the State Labor Inspectorate during its visit to the company. The labor inspector will check whether the civil law contract masks labor Relations. This may be evidenced by the performance of a labor function, and not a specific task, subordination to internal regulations, remuneration, in terms of size and method of payment, more like a salary. If the actual compliance of the civil contract with the labor one* is established, the employer may be fined for bringing the employee to work during the vacation period. Recall that for officials and entrepreneurs, the fine ranges from 1,000 to 5,000 rubles, and for an organization - from 30,000 to 50,000 rubles (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Claims are also possible tax authorities. The fact is that the cost of remuneration under civil contracts is recognized as economically justified only if the employee performs tasks under them that are not included in the labor function of the organization's full-time employees**. Thus, the contract concluded with the manager Ilya on the performance of his usual labor duties during the holidays can serve as a source of trouble for LLC "M ...".

How to draw up a civil law contract?

The HR director advised the head of the sales department not to use such dubious schemes of work in the future. But if the decision is made, it is necessary to approach the preparation of a civil law agreement with all responsibility. The tasks that are given to the vacationer should not copy his job duties. It is impossible to allow such terms as “employee”, “salary”, “disciplinary responsibility”, “rules of internal work schedule' and others, unequivocally testifying to labor nature legal relations. A feature of civil agreements is the act of acceptance and transfer of work performed (work rendered). It is imperative to sign such a document with the contractor: in case of claims or litigation, it will help the organization confirm that the citizen received and did a specific task, and did not perform a labor function that is of a continuing nature.

On the recommendations of the HR Director, Lyudmila, together with the head of the sales department, drew up a correct civil law contract (see the sample on page 93). And Ilya stopped coming to the office as if to work, so as not to create the appearance of obeying the rules of the internal labor schedule.

Are there other ways?

There are no other legal ways to earn extra money during vacation, except for a civil law contract.

Sometimes employers enter into a fictitious urgent labor contract with another worker. And the task is performed by the same vacationer. Such a system is illegal, and one can only hope that it will not open during the inspection of the State Labor Inspectorate. Keep in mind that inspectors often not only inspect documents, but also communicate with staff, revealing the real state of affairs.

The question often arises, is it possible to arrange a part-time job for an employee during a vacation? The Labor Code gives an unequivocal answer to it: it is impossible. Part-time workers are granted annual paid vacations simultaneously with vacations at their main place of work (Article 286 of the Labor Code of the Russian Federation). Following the letter of the law, having accepted a part-time vacationer to perform any task, you will be required to immediately send him on vacation. This applies to both external and internal part-timers.

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)

Margarita SUCHKOVA,
Head of Human Resources and Records Management FGU Center MIR IT

* The provisions of the Labor Code apply to such relations (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts Russian Federation Labor Code of the Russian Federation).

** Letter of the Ministry of Finance of Russia dated January 19, 2007 No. 03-04-06-02/3, letter of the Ministry of Finance of Russia dated January 26, 2007 No. 03-04-06-02/11. In these letters we are talking not only about income tax, but also about UST, but in terms of UST, the explanations are not relevant, since this tax was canceled from January 1, 2010 ( the federal law July 24, 2009 No. 213-FZ).

Read the article

Talks about how not to overwork without extra pay and how to refuse an employer who calls you back from vacation

Olga, very often at large and small enterprises there are layoffs and layoffs. Moreover, another employee will have to fulfill the duties of a dismissed colleague. Tell me is it legal?

If the employee has job description, then he has the right to do the work in accordance with it. If not, are the obligations defined in the employment contract? Are the duties of the dismissed employee subject to the terms of the contract of the employee who will perform these duties? If not, then the employee has the right not to comply with them. If so, it will be difficult to challenge the imposition of additional responsibilities.

- And what can an employee demand for processing?

We must try to peacefully and in a businesslike way explain to the leadership that extra work additionally paid. If the position of the dismissed employee is not excluded from the staff list, then it can be offered to the employee for combination (Article 60.2 of the Labor Code). Those. he will carry out both his duties and the duties of the second position in the main working time. An additional agreement to the employment contract can be drawn up, but this is not necessary. An order to combine with the conciliatory signature of the employee is sufficient. The surcharge for combining is established in a contractual manner (Article 151 of the Labor Code). You should be careful about the verbal promises of the leadership. The option “work, and then we will pay extra” is unlikely to be implemented in reality. Accounting for accruals requires a written order. There will be no order - there will be no surcharge.

Okay, let's look at the same situation from the other side. The employer, wishing to save on wages, redistributes duties and reduces vacant positions. Can employees influence his decision? Can they refuse to reduce or challenge it?

You should be careful about the verbal promises of the leadership. The option “work, and then we will pay extra” is unlikely to be implemented in reality.

The decision to reduce the number or staff is entirely within the competence of the employer. He has the right to make cuts. The opinion of employees is not taken into account. Workers can interfere with the situation only if the reduction is imaginary. For example, the employer will reduce the staff, and then in the near future again restore in staffing the same units. But you need to understand that with such a development of events, you will have to monitor the actions of the management after the dismissal on the reduction and that it will be possible to protest the imaginary reduction only in court.

- And if the position was reduced when the woman was in maternity leave. Situation: they reduced the position, and after the release of the employee in the personnel department, they promised part of the salary, if it is celebrated every day. They explained this by the fact that she is now in idle time, and when the child turns 3 years old, she will be reduced. What to do?

You should immediately contact the prosecutor's office and (or) the state labor inspectorate with a complaint. The employer had no right to reduce this position. He was obliged to provide it to the employee on demand (part 4 of article 256 of the Labor Code). The position is subject to reinstatement. And this position is not idle. Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (part 3 of article 72.2 of the Labor Code). So in this case, there is no temporary suspension of work. The employer simply does not intend to resume work in this position.

This situation is provided for in Part 1 of Art. 155 TK. And it is called "non-fulfillment of labor standards, non-fulfillment of labor duties through the fault of the employer." In this case, wages are paid in the amount of average earnings, and not part of it.

True, after the child is three years old, the employer will be able to fire the woman to reduce staff.

- Clear. Another question is often of interest to working citizens - what to do if called from vacation. The management needs a person for audit, to check the enterprise, etc. Can they forcefully interrupt the vacation?

- Recall from vacation is possible only with the written consent of the employee (Article 125 of the Labor Code). The review is documented, with a written proposal from the employer, with the written consent of the employee and the issuance of a corresponding order. In this case, the employee has the full right to refuse to go to work. He is not obliged to agree with the employer's request, and there can be no question of "forcing" him. To go to work or not is up to the employee to decide. If the review is executed as expected, it will be paid a normal working day, vacation pay for this day will be recalculated. If there is no registration of a recall, and the employee, succumbing to pressure, goes to work, he will almost certainly not be paid for this day, because. there will be no documentary evidence for this.

- And finally - what to do if the employer refused to pay new year holidays? Is it legal?

If the schedule provides for work on a holiday, then neither an order nor the consent of employees to work on a day off is required.

Non-working public holidays are the days from January 1 to January 8 (Article 112 of the Labor Code). By general rule work on holidays is prohibited (Article 113 of the Labor Code). Part 3 Art. 112 of the Labor Code contains the following rule: “For non-working holidays in which employees were not involved in work, additional remuneration is paid. The amount and procedure for payments are determined by the collective agreement, agreements, labor contract. The amounts of expenses for the payment of additional remuneration for non-working holidays are included in the cost of wages in full. Those. The Labor Code obliges the employer to take normative act, providing for payments for the long New Year holidays, and comply with its instructions. But it is clear that in reality, employers rarely comply with this provision of the law. If you have a union, start by contacting the union body. If not, one cannot do without the involvement of the prosecutor's office and the state labor inspectorate.

- Then one more question. And how is work on a holiday protected by the Labor Code?

If the schedule provides for work on a holiday, then neither an order nor the consent of employees to work on a day off is required. In accordance with the work schedule, these days are working days for these employees, employees are familiarized with the schedule at least a month in advance (Article 103 of the Labor Code).

However, work on this day is paid double (Article 153 of the Labor Code). If part of the work shift falls on a holiday, then the hours actually worked on the holiday (from 0 to 24 hours) are paid at an increased rate. See Explanation State Committee Council of Ministers of the USSR on Labor and wages, Presidium of the All-Union Central Council of Trade Unions No. 13 / P-21 of August 8, 1966 "On compensation for work on holidays." The document is currently valid.

If your employee goes on vacation, and there is no one to replace him, one of the options for solving the problem would be to hire another employee during the vacation of the main employee (Article 59 of the Labor Code of the Russian Federation). Employers usually resort to hiring new people in cases where the main employee goes on vacation for a sufficiently long period.

Making a temporary worker

The employer must conclude a fixed-term employment contract with a new employee. It should indicate the start date of work, the duration of the contract, the reason for "urgency", as well as the position and full name of the vacationer, whose duties the newly hired employee will have to perform (Article 57 of the Labor Code of the Russian Federation). For example, the text may indicate: “the contract was concluded for the period of absence of the office work specialist A.N. Kotomina, who is absent due to being on annual paid leave.”

The order for employment - form N T-1 (approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1) must also indicate that new employee hired temporarily instead of the main employee. For this:

• in the header of the order “hired by” you can indicate not a specific number, but by “date of entry to work ...” and then the name of the main employee;
• in the line “conditions for employment, nature of work” indicate: “for a period of temporary absence ...” and then the full name of the main employee.

Concerning work book temporary employee, then in accordance with general requirements it is necessary to make a record of employment without a note that he will work in return for a temporarily absent employee.

Features in the work of temporary employees depending on the term of the contract

If the vacation of the main employee lasts less than 2 months, then with the person who will have to perform his duties, you must conclude a fixed-term employment contract for up to 2 months (Article 289 of the Labor Code of the Russian Federation). He can't install probation. Also, a temporary employee will be entitled to leave. Its duration is determined according to the principle - 2 working days for each month of work (Article 291 of the Labor Code of the Russian Federation). Or instead of a vacation, you can pay him.

If, in connection with a longer vacation of the main employee, a fixed-term contract is concluded for a period of 2 to 6 months, then you can establish a test for a new employee, but for a maximum of 2 weeks (Article 70 of the Labor Code of the Russian Federation). In terms of granting vacations or paying compensation for unused vacation, such workers are subject to general rules.

Coping on our own while the employee is on vacation

Not only a newly hired person can perform the duties of an employee who has gone on vacation, but also other employees working in your organization. There are 2 options here.

substitution suggests temporary transfer one of your employees in place of an employee who went on vacation (Article 72.2 of the Labor Code of the Russian Federation). During this period, the transferred employee performs only the work of a vacationer (he can forget about his duties in the previous position) and receives a salary in accordance with the work he performs. Substitution can be made in the usual order. Suitable for this

The most enjoyable part of the job is vacation. Vacation is an annual vacation that is provided to employees of any organization.

Vacation types

There is different types holidays:

• Basic vacation. This leave is twenty-eight days. If you do not want to rest for so many days in a row, you can divide your vacation into parts. First, rest for at least fourteen days, and then take the rest of the days. If you recently came to work, then you should work for six months, and then already apply for leave. However, some employees may be granted leave earlier, for example by employees who are under eighteen years of age. Further, the employee can receive vacation at any time of the working year.
• Additional vacation. Extra days vacations are given to those employees who work not standardized or their work is associated with danger.
• Leave without pay. This holiday is provided for good reasons. For example, a wedding or a funeral. The employee writes a statement, and the employer considers it and provides such leave if the reasons are really good.
• Other vacations (for example, maternity leave).

And so you go on vacation, enjoy your vacation, and suddenly a call comes in from your boss. He wants you to go to work. Of course, there are different situations. For example, a colleague who temporarily performed your duties fell ill, or a client wants to work only with a specific specialist.

Is it possible to work on vacation? Let's figure it out.

Review from vacation

Your boss cannot force you to return to work from vacation against your will. However, according to article 125 of the Labor Code of the Russian Federation, you can be recalled from vacation if your organization cannot cope without you. However, you must agree to work. If you agree to work during your vacation, then those days that you did not rest can be added to the next vacation or rest in the same year. If you do not want to interrupt your vacation, no one can force you to do so. The only thing that can happen is your boss's displeasure after you return to work after your vacation. Try not to react to this circumstance, because the law is on your side.

Who cannot be recalled

• Employees under the age of eighteen;
• Workers who work at work with dangerous or harmful conditions;
• Pregnant women.

Compensation

It happens that an employee wants to go on vacation, naturally receiving vacation pay, and work during vacation, receiving a salary. Of course, you can't do that. It is forbidden to work and be on vacation at the same time, receiving both salary and vacation pay. But you can get monetary compensation for unused vacation days.

But there are restrictions here, they are spelled out in article 126 of the Labor Code of the Russian Federation:

• First, you can not replace the entire vacation. You can replace with monetary compensation only that part of the rest that exceeds twenty-eight days.
• Secondly, both main and additional leave is not replaced by compensation to pregnant women, as well as too young workers under eighteen years of age and workers with harmful working conditions. These people should rest the entire vacation.

part-time

What to do if a person works not only at one job, but also works part-time in another organization. In this case, leave must be taken at two jobs, in accordance with Article 268 of the Labor Code of the Russian Federation. That is, a person must go on vacation both at his main job and at a part-time job.

As you can see, you can't work while on vacation. But you can issue a review from the vacation and "walk" the unused days later. And best of all, use your right to rest, because you have worked in good faith for a whole year. Now you have the right to rest, gain energy, so that later you can begin to fulfill your work duties with renewed vigor.

The right to rest is granted by the Constitution of the Russian Federation, as well as Labor Code Russia. If you want to know about other employee rights, please read our section carefully.