1 irregular working day. What is an irregular working day? How is an irregular working day interpreted in the Labor Code of the Russian Federation?

An employer who engages staff to work beyond a certain standard must introduce irregular working hours. The article contains cheat sheets for personnel officers and a special selection on the application of such a regime according to the new rules.

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Irregular working hours - what does this mean from the point of view of the law?

The Labor Code of the Russian Federation considers irregular working hours as a special mode of work caused by production needs. According to Article 101 of the Labor Code of the Russian Federation, an employee working in this mode may from time to time be involved by the employer in performing his direct duties. labor functions outside the working hours established for this position.

It is important to consider that the mode irregular days under no circumstances can it serve as a basis for calling you to work on a weekend or holiday. It should also not be confused with overtime work, the duration of which is strictly limited by current legislation (no more than 4 hours a day, up to 120 hours a year). In addition, overtime work is paid at an increased rate, while work under irregular working hours is compensated only by the provision of additional leave.

The application of a special procedure is considered legal only if, in the labor or collective agreement, additional agreement or a local regulation developed by the employer, a corresponding clause is provided, and the staff knows about it. In other words, no one prohibits periodically asking subordinates to stay for several hours after the end of the working day in order to finish previously started work, but first you should make sure that the enterprise has documents that provide for such processing, and their effect extends to specific specialists.

At the same time, the legislator does not limit the duration of daily overtime, which, unfortunately, is often abused by unscrupulous managers. It is also important to understand that overtime should be episodic and not regular: even if you hire a specialist for a position with an irregular schedule, you cannot make overtime a daily practice, breaking the law and creating fertile ground for conflict (sooner or later, even an easy-going employee will run out of patience) .

Regulations on irregular working hours

The Labor Code has changed the basic rules for working during irregular working hours (Federal Law No. 125-FZ dated June 18, 2017). It is now impossible to install for those who work part-time. This condition needs to be abolished, since when checking the State Labor Inspectorate, the employer may not only be issued an order, but even fined. Check if you know everything about irregular work. Watch a special selection from the HR System experts.

Irregular working hours - how many hours?

The normal length of a working week should not exceed 40 hours. However, there is always a list of positions with irregular working hours, when they require occasional performance job responsibilities outside the established norm. For example, during emergency situations at work, when specialists holding responsible positions have to work beyond the norm:

• director,
• Deputy Director,
• heads of departments,
• accountants and so on.

Such specialists often have to stay at their workplace for a long time and decide important questions, urgent. To ensure that the production situation does not run counter to the requirements of the law, it is necessary to introduce irregular working hours for individual employees.

How to establish a list of positions with irregular working hours

The employer can determine the list of positions of those employees who will have irregular working hours independently. The condition must be fixed in a collective agreement, agreement or other local regulatory act adopted taking into account the opinion of the trade union. For example, a list of positions can be fixed in Regulations on irregular working hours. It is important to take into account the nature of the work assigned to individual groups of employees. Some categories cannot be assigned irregular working hours.

Irregular working hours according to the Labor Code of the Russian Federation: reasons for changing the regime

An irregular working day according to the Labor Code of the Russian Federation is not slavery permitted by law, as some employers think, therefore the involvement of personnel in work outside the norm established at the enterprise must be justified. On the one hand, it is the company making such a decision that is obliged to formulate and voice the reasons why personnel should work beyond the norm (since there is no clear list of reasons why a particular specialist can sometimes be assigned additional work at the end of the day or before it begins). legislation does not contain).

On the other hand, when deciding this issue on their own, employers sometimes ignore both the rights of employees and even common sense: for example, they set an irregular day for a watchman (while this position does not involve solving urgent problems). But if we're talking about about the head of the company, who often has to hold important meetings with business partners at a late time, or his personal driver, the transition to special working conditions is quite justified.

Irregular working hours: introduction procedure

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If production periodically accumulates a significant volume of tasks and assignments, for which a full day of work is not enough to complete, you will have to approach the issue in detail and develop regulations, establishing a regime of irregular working hours for individual positions. In practice, we are talking, as a rule, about leadership positions ( Chief Accountant organization, director, chief technologist etc.), as well as positions of workers whose work cannot be accurately recorded - for example, repairmen servicing a production workshop, or operators engaged in customer service. The general algorithm will be as follows:

• compiling a list of positions to be transferred to new mode;
• We include the list in the collective agreement (agreement) or internal labor regulations;
• we issue an order (instruction) to attract specific employees to work in a special regime and familiarize them with the document against signature;
• we reflect the corresponding condition in the employment contract if we are talking about a new accepted employees, or we enter into an additional agreement with employees previously hired by the organization.

Remember that even if you have an impeccably prepared documentary base, you can only engage an employee with irregular hours to perform the duties stipulated by the employment contract ( Article 60 of the Labor Code of the Russian Federation). To assign any additional responsibilities to him, a separate agreement will have to be concluded.

Composing employment contract, the clause on the special schedule and compensation due to the employee in the form of additional paid leave should be spelled out in detail. Be sure to indicate the exact number of calendar days of vacation (main and additional). When drawing up an additional agreement on the transition to irregular working hours, it is necessary to indicate the date from which the new working hours are introduced. And remember that under no circumstances should it be installed on all personnel of the enterprise - in Art. 101 Labor Code of the Russian Federation it clearly refers to “individual employees”.

An order to work extra hours can be either oral or written - the requirements of labor legislation in this matter are devoid of specifics, so employers should make their own decisions taking into account the prevailing circumstances. Of course, in the event of a legal dispute, a strong argument in favor of the company will be the presence of a neat stack of orders issued every time the need for “emergency” work arises. But you can also give a verbal order, the main thing is to explain to the employee why he should stay late or come early, not limiting himself to the dry and meaningless wording “due to production needs.” If staff understand that each processing is legal and justified, the likelihood of conflicts developing on this basis will be minimized.

Irregular working hours: recording working hours

The obligation to keep records of time worked by personnel rests with the employer ( Article 91 of the Labor Code of the Russian Federation). Based on information about the exact number of hours worked by an employee, his salary is calculated, so overtime hours are necessarily taken into account, but there are several different points of view on accounting for overtime during irregular working hours. The first says that the use of such a regime is by no means a reason for refusing to record processing time: every hour must be reflected in accounting documents, in particular, forms T-12 and T-13, marking them special code, for example, with the letters “NRD” to avoid confusion.

The second point of view comes down to a complete refusal to record overtime (“why, if they are not paid anyway?”), and the third involves the execution of a separate document, in which only the hours of overtime of personnel working in excess of the norm are noted, while in general the report card indicates the hours worked within the normal duration working hours. In general, it is enough to simply mark the day worked on the report card with a standard “eight” without indicating overtime - this is not considered a violation.

Form No. T-12. Time sheet and calculation of wages

Irregular working hours: restrictions on work in irregular hours

The law prohibits certain categories of workers from establishing a work schedule that involves performing labor functions beyond the normal working hours. We are talking about employees who, in accordance with the provisions of the Labor Code, are subject to maximum working hours or a reduced length of the day (week), namely:

• personnel engaged in work with hazardous or dangerous conditions labor;
• minors;
• disabled people of groups I and II.

For similar reasons, irregular working hours are rarely established for other preferential categories of employees, for whom the employer is obliged, at the first written request, regardless of the degree of tension of the production situation, to establish a partial week or partial day:

• pregnant women;
• persons caring for a sick family member;
• one of the parents, guardian or trustee of a child under 14 years of age (or a disabled child under 18 years of age).

Additional leave for irregular working hours

Employees who work outside the norm have the same rights as the rest of the team: rest on weekends and holidays, comply with the routine adopted by the enterprise, etc. Employees do not have the right to independently determine the start and end time of the working day, therefore they have no right to arrive later than the time set by the employer or leave before the due date (see Resolution of the Fifteenth Arbitration Court of Appeal No. 15AP11384/ 2011 dated December 27, 2011).

But at the same time, for working under a special regime, they are entitled to additional guarantee- lasting at least three calendar days ( Article 119 of the Labor Code of the Russian Federation), provided annually along with the main leave. At the same time, the maximum duration of such leave is not established by law, so employers who want to reward employees for conscientious work and periodic overtime have the right to secure the right to a longer rest by a collective agreement or other local act.

If an employee asks to replace additional leave with monetary compensation, he can only be accommodated if the total duration of paid leave (including annual leave) exceeds 28 calendar days. To formalize such a replacement in accordance with all the rules, you will need a written application from the employee, and the employer has the right to refuse it, if there are reasons for this - he is not obliged to unconditionally satisfy the request for payment of monetary compensation instead of vacation.

Application for replacement of additional leave with monetary compensation

Compensation is calculated taking into account average earnings, but it is necessary to remember the legislative restriction prohibiting the replacement of additional leave with cash payments to pregnant women and employees employed in positions with harmful or dangerous working conditions. Otherwise, everything is as usual: additional leave can be added to the main one, transferred (at the request of the employee), and unused days can be summed up with the next year’s leave.

The procedure for calculating and providing additional leave in commercial organizations determined by the employer, in budget - legislative acts and government regulations. In particular, not so long ago amendments were adopted to the federal law “On State civil service Russian Federation» No. 79-FZ of July 27, 2004: now the right of civil servants to additional annual leave of 3 calendar days for an irregular working day is fixed in new edition clause 6.1 of article 46, and the right to receive monetary compensation instead of part of the vacation exceeding 28 calendar days - clause 9.3 of article 46 of the Law.

Some organizations have the practice of paying salary bonuses to specialists whose positions require occasional delays at work. The law does not oblige or prohibit the appointment of such additional payments, as well as any other privileges and benefits, but in any case they must be properly formalized, securing the corresponding condition in a local document.

We respect the right of workers to rest

If the employer complies with the requirements of the law, overtime during irregular hours is rare, episodic in nature (the frequency of attracting personnel to work outside the normal duration of work can be tracked using the relevant orders, if the management of the enterprise does not neglect to formalize them). But if overtime becomes a regular occurrence (employees are constantly or systematically late at work in order to cope with tasks assigned by their superiors, or at his request they come to work early), we can talk about a clear offense, because such work is not even paid as overtime, although it requires no less expenditure of time and effort.

The injured party can go to court or the labor inspectorate: if the violation of the employee’s rights is confirmed by the results of the inspection, the culprit will have to bear financial and administrative liability. As a rule, this situation is considered by GIT inspectors and the court as overtime work, for which appropriate monetary compensation is due, therefore, you will have to pay for overtime.

A common violation is the refusal to provide additional paid leave to an employee who occupies a “non-standardized” position, but during the year has not worked a single hour in excess of the norm. The employer’s logic in this case is simple (“if there was no overtime, then vacation is not due - after all, there is nothing to compensate”), but it is fundamentally wrong. According to Article 119 of the Labor Code of the Russian Federation and the letter of Rostrud No. PG/3841-6-1 dated May 24, 2012, there is no talk about proportional compensation here: additional leave should be provided regardless of the number of days in which the employee was involved in work after completing a full day of work in normal mode. Consequently, an unreasonable denial of legally guaranteed rest will clearly be regarded as a serious offense and is unlikely to remain without consequences.

Irregular working hours, how to prove to the employer that you are right in court

It is not only employers who tend to abuse the rights and opportunities that the law has given them: employees are also trying to take advantage of the ambiguous situation that has developed in production. Quite often, the court has to deal with those who believe that the enterprise is obliged to provide more substantial compensation for overtime or to provide staff additional benefits due to special working conditions.

And if the court immediately rejects claims with demands to allow the employee to independently determine the start and end time of work or to receive additional payment for each hour of overtime (along with the provision of additional leave) due to their groundlessness, then cases of unfair behavior of the employer who allegedly refused leave or forcing staff to work several hours every day, we have to look into it thoroughly. In this case, it will help to avoid unfounded accusations evidence base in the form of documents confirming the legality of the introduction and application of a special operating regime.

To prove that an irregular working day was absolutely lawfully established for a specific specialist, you must present a collective agreement or internal labor regulations with a list of such positions, as well as an employment contract or agreement with the employee’s signature confirming his consent to work in a special regime. If there is a trade union at the enterprise, it is necessary to prove that the list was approved only after agreement with its representatives. It is good if the defendant has orders and instructions to involve the employee in work beyond the established norm, and a time sheet recording the actual time worked for the disputed period with marks confirming the episodic nature of the overtime.

The following will help refute the accusation of failure to provide additional paid leave:

• employee’s personal card with vacation notes;
• an order granting leave due for an irregular working day, indicating specific start and end dates;
• pay slip or pay slip confirming payment of vacation pay.

And if the employee chose material compensation, it is necessary to provide the court with a written statement requesting the replacement of rest days with a cash payment and a statement confirming the fact that the money was issued.

The employer has the right to establish irregular working hours for certain categories of employees who periodically have to solve urgent problems after graduation. set duration working hours. For irregular days, employees receive additional vacation days or compensation payments in lieu of rest days.

The working day of an employee of an organization can have different lengths depending on the area in which he works. However, as a basis for calculation wages a certain standard of labor hours per day or week is taken, which is regulated at the legislative level.

Length of normal working day

The term “standard working day” is absent in the legislation, but it is often used by the parties labor relations. It is assumed that the citizen will work the hours required by law per day (week, month).

According to the Labor Code of the Russian Federation, working time is the time during which an employee must perform his duties provided for by the internal labor regulations and the employment contract.

Usually it takes a week to calculate the norm. Weekly working standard is 40 hours. An employer can give an employee the choice to work 5 or 6 days a week. If a citizen works 5 days a week, his working day will be 8 hours. A six-day week means reducing the working day by an hour. In this case, the working day before the weekend is reduced by 2 hours.

It is more difficult to keep records when people work in shifts, for example, 2 days with a 12-hour working day, 2 days off. Then the schedule constantly shifts relative to the days of the week. In this case, a longer period is taken for the accounting period, usually a month. But the norm remains the same - 40 hours per week.

A standardized working day implies a fixed working time. This is how most workers work. Delays are considered overtime and must be paid separately. For some employed people, a shortened working day may be introduced. It will also be considered standardized, since a certain duration is provided for it.

An organization may introduce irregular working hours for individual employees. This means that management has the right to occasionally involve them in work beyond the normal working hours. Such employees are entitled to an additional 3 days of vacation.

Video: working time and rest time according to the Labor Code

Shortened working hours

Labor legislation gives some citizens the right to work less than the usual norm. Reduced working hours imply that the employee is allocated less than 40 hours per week to work, but such a duration will be the norm for him. The manager has no right to interfere with this.

A shortened working day (week) is established for the following circle of persons:

• minors who do not study or work during the holidays:
  • up to 16 years old - 24 hours a week and 5 hours a day;
  • from 16 to 18 years old - 35 hours a week and 7 hours a day;
• minor students during the school year:
  • up to 16 years old - 12 hours a week and 2.5 hours a day;
  • from 16 to 18 years old - 17.5 hours per week and 3.5 hours per day;
• disabled people of groups I and II - 35 hours per week;
• teachers - 36 hours per week;
• medical workers - 39 hours per week;
• workers in conditions dangerous to life and harmful to health - 36 hours.

A reduction in working hours is possible only if employees have documents proving the validity of such an action.

In addition to a reduced work schedule, part-time work may be introduced. It is issued for the following persons:

• pregnant women;
• a parent raising a child under 14 years of age or a child with a disability under 18 years of age;
• a citizen who cares for a sick family member.

In these cases, the working day is reduced by agreement of the parties; no specific limits are provided, but the employer must accommodate such employees.

Any person can work part-time if the organization of work at the enterprise allows this, and management has no objections.

The main difference between a shortened working day (week) and part-time work is that the shortened schedule implies the calculation of wages to the employee in the same amount as employees with normal working hours (if the salary is not piecework). For part-time work, payment is calculated strictly in proportion to the time worked.

Regulations on normal working hours in the organization

To organize the labor process, management draws up internal documentation:

• employment contracts with employees and additional agreements thereto;
• collective agreements;
• internal labor regulations (ILR);
• provisions on normalized or irregular working hours, etc.

Typically, labor standards are enshrined in the PVTR, so the need for a provision on a standardized working day does not always exist. It will be needed when it is necessary to return employees to a standard work schedule for the majority.

More often, as a separate document, there is a provision on irregular working hours. It is necessary to take into account:

• positions that may be subject to the regime;
• the procedure for engaging in work outside of normal working hours;
• procedure for providing compensation and incentives (additional payments, bonuses, additional leave).

Regulations on irregular working hours are drawn up in the event that employees will be involved in work outside the norm

The regulations on normalized (as well as irregular) working days indicate the following:

• name of the organization in accordance with the constituent documents;
• Title of the document;
• date of registration of the position and its number;
• the purpose of creating the document;
• a list of positions that are subject to the regime;
• terms of remuneration;
• the procedure according to which the time worked by each employee is taken into account;
• a note about applications, if any.

Procedure for approval of the regulations:

1. First, the document is approved by the responsible persons.
2. The manager then puts the visa on the title page. The visa indicates his full name, position, personal signature and date of approval.
3. Next, an order is issued to introduce the document into the organization.

The fact that employees are familiar with the regulations is certified by their signatures.

The regulations on labor standardization in the organization prescribe the goals and objectives pursued by management

Procedure for transferring to full-time work

Transfer to full-time work must be carried out in a certain order established at the legislative level or prescribed by the internal documents of the organization. It is prohibited to transfer an employee to full-time work without his consent in writing.

If the initiative comes from the employer, a corresponding order is issued, which is brought to the attention of employees 2 months before the upcoming changes. They must put their signature on the document, which will indicate their consent and awareness.

When the initiative comes from an employee, he writes a statement asking to be transferred to a full-time work schedule. On this basis, management issues an order, and the employee signs as a sign of familiarization with it.

Changes in the schedule are fixed in an additional agreement to the employment contract, which is signed by both the employee and the employer. If the salary changes, this is also taken into account in the document.

Order for transfer to full-time work

The order for transfer to full-time work is drawn up in any form.

It records the following data:

• the date from which the new operating mode is introduced;
• the end date of the changes, if they are of a non-permanent nature;
• an indication of changes in such elements of the labor regime as working day, week, etc.;
• a list of all planned breaks in work.

The order to transfer an employee to full-time work indicates the person who is entrusted with the responsibility to monitor the execution of this order

Application for transfer to full-time work

An application is submitted if the employee expresses a desire to work full-time. The transfer applies to those employees who are already on staff but work part-time.

As a rule, these are the following persons:

• pregnant women;
• full-time students;
• parents whose child has grown up and does not need increased attention;
• working part-time.

If the grounds for reducing the work schedule become irrelevant, employees fill out an application for transfer to full time.

It contains the following information:

• name of the organization, position and full name of the head;
• request for transfer to full-time work;
• the date from which the worker is ready to start working full-time;
• employee signature.

An application for transfer to full-time employment is written in free form

Features of payroll

A working day within the established norm can be paid in the form of a salary, piecework or a combined system. But there are special periods that are subject to separate payment rules.

Table: how an employee is rewarded for working under different conditions

Labor legislation establishes how much a citizen is obliged to work in certain cases. Many organizations establish a standard working day - eight or seven hours. The working hours are prescribed in the local regulations of the organization, including the regulations on normalized working hours, and are approved by order of management. If an employee wishes to transfer to a full-time position, he must write a corresponding application.

2018-09-06T10:08:43+03:00

What is an irregular working day in the Labor Code of the Russian Federation? How many hours does the employer have the right to involve the employee in work outside the duration of his working hours? How legal this is and how irregular working hours are regulated by current legislation. What is the difference between the concepts: flexible hours, irregular hours and overtime.

An irregular working day is a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees. An employee working on a part-time basis may be assigned an irregular working day only if the agreement of the parties to the employment contract establishes an incomplete working day. work week, but with a full working day (shift).

How is an irregular working day interpreted in the Labor Code of the Russian Federation?

The Labor Code of the Russian Federation, which is designed to regulate relations between management and subordinates, pays a lot of attention to establishing standards for time spent at work that are not harmful to health, as well as standards for the time that the body will have enough to recuperate, including irregular working hours.

The length of time an employee must remain within the company while performing his or her job functions is specified in the “Working Hours” section. Within the framework of this concept, as well as the concept of “irregular working hours,” it is recorded how many hours an employee must perform his duties during the day (in some cases, the term “shift” is used instead of a working day). There are also time limits for the work week and year. There is a separate concept of “rest time”. With its help, the duration of daily rest, weekends and vacations is regulated.

Irregular working hours: how many hours?

Typically, working hours are perceived as a 5-day workday with an 8-hour working day. This is precisely the norm that operates in the vast majority of enterprises and organizations - both public and private. But there is another working mode - irregular working hours (Article 101 of the Labor Code of the Russian Federation).

Irregular working hours are not introduced for the entire enterprise, but only for some individuals who simply need to work beyond the plan. It turns out that the entire company has, for example, a standard 5-day work schedule with work starting at 9 am, and individuals work long hours. Their duties include reporting to work at, say, 6 a.m. or leaving the office after 10 p.m.

For many, long working hours are closely intertwined with the concepts of “overtime” and “overtime.” But at the legislative level they are separated. Irregular working hours are a separate work schedule that allows the employer to employ specific employees outside of their standard schedule.

Who gets an irregular day?

The legislation does not limit the employer in the choice of positions for which irregular working hours can be established. However, the determination of such a list must be approached taking into account the nature of the work and not include in it all positions available at the enterprise. This may raise questions from inspectors. The list of positions can be drawn up in the form of a separate local regulatory act or included in a collective agreement or internal labor regulations. It must also be agreed upon with the employees’ representative body (if there is one).

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

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

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

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

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

Overtime in 2019:

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

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

How to arrange irregular working hours?

Since information about an irregular schedule is significant and must be included in the employment contract, the employer must familiarize the future employee with this condition, as well as the compensation that he is entitled to for overtime working hours. In particular, according to Article 119 of the Labor Code of the Russian Federation, employees who work in this mode are entitled to additional paid leave. Its duration is determined by the collective agreement, but it cannot be less than three days.

An employee has the right to contact the employer with a request to replace additional leave for overtime with monetary compensation. This possibility is provided for in Article 126 of the Labor Code of the Russian Federation. However, providing this monetary payment is the employer's right, not an obligation.

Registration of attraction to work beyond normal working hours

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

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

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

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

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

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

Please note: We recommend that you enter the standard working hours for an employee with irregular working hours in the time sheet. And records of processing can be kept in a separate journal.

Compensation for working irregular hours

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

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

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

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

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

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

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

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

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

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

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

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

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

Part-time and part-time work

According to Article 101 of the Labor Code of the Russian Federation, an employee working part-time can be assigned an irregular day if he is assigned a part-time working week, but with a full working day (shift).

If the employee is assigned a part-time working day, then it is impossible to establish an irregular working day for him. In this case, one of the labor modes completely loses its meaning.

Also, the law does not prohibit the establishment of irregular hours for part-time workers. But there are some peculiarities here:

• If a part-time worker is given a working day of no more than 4 hours, then such a working day is considered incomplete. Therefore, it is impossible to establish an irregular working day;
• If a part-time worker at his main place of work is free from work duties on some days, then he can work a full shift with a part-time work week. In this case, he will be able to establish an irregular working day (according to Article 101 of the Labor Code of the Russian Federation) and, accordingly, compensation in the form of annual paid leave of at least three calendar days.

Documentation of conditions

When hiring an employee, it is necessary to familiarize him with the collective agreement, internal labor regulations and other local regulations in force in the organization and relating to his labor function. After this, an employment contract is concluded with the employee, which includes a condition for working on irregular working hours. By signing it, the employee agrees with the nature of the work, which involves overtime.

List of positions for workers with irregular working hours

The circle of people who can work irregular working hours is established almost arbitrarily at the local level. There is no single list of positions with irregular working hours in the legislation. Only isolated recommendations can be found on this issue.

Thus, in the Decree of the Government of the Russian Federation “On approval of the rules for providing annual additional leave to employees with irregular working hours” dated December 11, 2002 No. 884, it is proposed to include the following positions in the list:

• Management team. For example, a CEO can easily work long hours.
• Maintenance personnel. The same service technician can come to work early during irregular working hours to check the equipment.
• Housekeeping staff. Having the caretaker come out to work irregular working hours can make the work of the entire staff easier.
• Employees whose time spent at work cannot be counted. A realtor can organize property showings during irregular working hours.
• Employees who have an obligation to work a certain amount of time, but the period when this must be done is not specified. These include people in creative professions, for whom long working hours are quite normal.

So employers have some freedom in choosing positions with irregular working hours. In private structures, irregular working hours are established almost entirely at the request of management. The main thing is that the list of positions is fixed in writing.

How many hours can you overwork?

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

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

"Russian Tax Courier", 2008, N 17

MYTH ABOUT LONG WORKING DAYS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Recently, in practice, employers often have difficulties with employees carrying out professional features during irregular working hours. Remuneration for the labor of such persons, according to the law, is made according to special rules. Meanwhile, not all employees understand them correctly. Thus, many employees begin to demand paid time off, believing that they have worked significantly; in some cases, they allow themselves to come to work later, arguing that this is due to delays at the enterprise in previous days. Employers, in turn, do not always know exactly whether the staff’s demands are legitimate. Further in the article we will look at the features of irregular working hours, wages under this regime and a number of other nuances associated with overtime work.

General provisions

In accordance with Art. 97 of the Labor Code, the employer has the right to involve the employee in the implementation of production tasks beyond the duration of the work shift established for him. The law stipulates 2 cases when this is permissible. Firstly, the employer can hire an employee to perform overtime work (Article 99 of the Labor Code), and secondly, if the employee works during irregular hours (Article 101 of the Code). The last case is the most difficult in practice.

Definition

The concept of irregular mode is clearly revealed. It is understood as those in which individual employees, by order of the employer, may occasionally be involved in the performance of their duties beyond the duration of the work shift established for them.

Difficulties in practice

It should be noted that HR departments and accounting departments of many enterprises are often equated with overtime. professional activity irregular working hours. In this case, they calculate payment according to general rules, in accordance with the system adopted in the organization. Meanwhile, the law clearly differentiates these regimes.

Overtime work, according to the Labor Code of the Russian Federation, is carried out at the initiative of the employer beyond the duration of the shift established for the employee, or in excess of the normal number of hours for the established accounting period (with a cumulative time recording mode). Accordingly, the establishment of an irregular day implies the creation of a special regime labor activity. It is incorrect to equate these working conditions and overtime work (Labor Code of the Russian Federation, Article 99).

Nuances

An employee who works under irregular working hours receives wages in the manner established by local regulations of the enterprise. At the same time, he must obey the general regime established in the organization. For example, if at an enterprise the start of the working day is 9.00 and the end is 18.00, then the corresponding employee must come and leave at the specified time. The main point with this regime is that the employee can be involved in activities beyond the normal time limit only occasionally, if necessary. Although in practice there are employers who believe that employees who have an irregular schedule are required to come to work at 8.00 and leave at midnight. This is a wrong opinion.

Some workers believe that they can come to the enterprise not at 9.00, as expected, but at 10.00, or leave when they see fit. It's a delusion. The fact is that the establishment of an irregular day does not imply the introduction of a flexible schedule. Accordingly, employees are not exempt from liability for violations of discipline.

Who can have irregular working hours?

The positions of workers working in such conditions can be very different. The law does not limit the employer's choice. The employer can independently establish the categories of employees for whom such a regime can be established. However, the employer must develop and approve a specific list of positions. It is included in the employment agreement, collective agreement or other local document of the enterprise.

The list may include employee positions:

1. The duration of their working activity cannot be accurately calculated. They, in particular, are company directors, business and maintenance personnel, technical employees, etc.
2. Independently drawing up a plan for the implementation of assigned tasks.
3. The working day (shift) is divided into intervals of unspecified duration.

There is no need to include in this list all positions provided for in the staffing table, since the inspection authorities will consider such an action irrational.

The list of positions for workers with irregular hours is agreed with the representative body - the trade union.

Example

Usually the list is compiled as a separate document and attached to the Rules of Procedure. The content must refer to the specific article of the Labor Code according to which the list is formed. To do this, you can use the following wording: “In accordance with the provisions of Article 101 of the Labor Code of the Russian Federation, due to production needs, the list of positions with an irregular schedule includes the following positions:

1. Sales department: head of department, manager.
2. Administration: head, deputy head, chief. accountant, driver, secretary.

Employees of these positions are assigned additional paid leave for irregular working hours (Labor Code of the Russian Federation, Article 119). Its duration is 5 calendar days.

Irregular regime with incomplete days

Is such a situation possible in practice? Quite. The legislation does not prohibit the establishment of an irregular schedule for part-time work. Moreover, Rostrud has repeatedly spoken out on this issue, pointing out the existence of such a possibility.

Design features

Many employers believe that familiarizing an employee with a local act, according to which the corresponding position is included in the list for which a special work schedule is assigned, is sufficient to periodically involve a person in work activities in excess of the established norm. At the same time, some managers do not consider it necessary to formalize the involvement of personnel and limit themselves to verbal orders.

It must be said that approval of the list of positions is extremely insufficient. It is necessary to document every time an employee is involved in irregular work. If, before joining the staff, it is known that this employee will have to work in this mode, before concluding an agreement, he should be familiarized with local regulations establishing a list of relevant positions, the type, and amount of compensation for irregular working hours. After this, an employment agreement is drawn up. It necessarily includes a condition on irregular working hours according to the Labor Code of the Russian Federation, leave for work in this mode and other essential points. The need to include such a clause in the contract is determined by the provisions of Article 57 of the Code. According to the norm, among the essential terms of the agreement is the work and rest regime, if it differs from general rule provided at the enterprise for personnel.

After the conclusion of the contract, an order is issued by the head of the organization. It should contain a reference to a special labor regime in the column “Conditions of admission, nature of work activity”. After this, an entry is made in work book(without indicating an irregular day), as well as on a personal card.

Important point

In practice, it may happen that an employee’s position is included in the list of positions with an irregular schedule already in the process of the person’s work activity. In such situations, the law requires that employees be informed in advance about upcoming changes. Notification is provided in writing 2 months before the introduction of the new regime.

The provisions of Article 74 of the Labor Code allow for changes in working conditions solely as a result of changes in the organizational or technological system at the enterprise. We are talking, in particular, about the implementation new technology production, structural reorganization, etc. The employer must have justified reasons for including a specific position in the list.

Employer Responsibilities

The employee does not always agree to change his schedule. If an employee refuses to work during irregular hours, the employer must offer him in writing another vacant position, corresponding to the qualifications, a lower position or a job paid less, taking into account the employee’s health condition. If such a position or work does not exist at the enterprise, in accordance with Part 1 of Article 77 of the Labor Code, the employment contract is terminated.

Specifics of order execution

In conditions of irregular working hours, the employee is involved in work activities by order of the employer. However, the provisions of Article 101 of the Labor Code do not contain instructions on the procedure for issuing such an order. Taking this into account, we can conclude that the legislator fully allows the issuance of an oral order. Meanwhile, according to a number of lawyers, verbal orders to attract employees should only be made when the organization has a clear time tracking system.

Recording and payment of overtime during irregular working hours

There are two opinions regarding the reflection of processing. Some experts believe that it is necessary to fix it. The fact is that in accordance with Part 4 of Article 91 of the Labor Code, the employer is obliged to keep records of the time worked by each employee. For this, as a rule, a time sheet is used. T-12 and T-13. In addition, at individual enterprises information is reflected in journals.

If an employee is late, most likely the person responsible for entering information into accounting documents will leave before him. Consequently, there will be no one to reflect the information. In such situations, it is advisable to issue a written order. You can also indicate in the job description or the employment agreement itself that the employee, for example, will stay at work for 3 hours twice a month to draw up a report. There is no need to establish a condition that the employee must stay after his shift every day or even every other day. Otherwise, when the employee contacts the labor inspectorate, such an order will be declared illegal.

Other experts believe that indicating information about overtime on the timesheet leads to the fact that irregular working hours and overtime work can be confused. If the accountant considers the mark in the document to be processing data, he will charge an additional fee.

In case of irregular working hours, however, it is necessary to keep track of time. This not only complies with legal requirements, but also has practical significance for the manager of the enterprise. The fact is that using the timesheet, the employer can track the frequency of going beyond the working day. Accounting will also be very useful in case of any emergency. The timesheet information will allow you to accurately determine whether a particular employee was present at the enterprise at that moment or not.

If the work schedule is irregular, payment for overtime hours is not made. However, the law still provides guarantees for employees working in such conditions. Article 119 of the Labor Code stipulates that such employees are provided with additional leave (paid), the duration of which is determined in the collective agreement or rules internal regulations. In this case, its duration must be at least 3 days (calendar). Vacation can be added to the main one or taken separately.

The right to additional rest is granted regardless of the presence or absence of overtime.

Controversial point

In some cases, employees, believing that they have worked a lot (for example, performed production tasks beyond the normal duration of the shift every day for a month), ask the employer for an additional paid day of rest. Of course, their desire is quite understandable. Employees believed that they would only overwork occasionally, but they were constantly involved. However, overtime hours under irregular hours are not equal to overtime hours. In the latter case, the employee has the opportunity to choose either monetary compensation or additional rest (Article 152 of the Labor Code of the Russian Federation). For an irregular schedule, only one compensation is established by law - vacation. Accordingly, the employer may not satisfy the request for an additional paid day of rest.

Work at night, on weekends and holidays

Let us briefly consider how irregular working hours are paid in such cases. First of all, it should be noted that the involvement of employees in work at night, on a holiday or a day off, regardless of the regime, is carried out in compliance with the requirements established by the Labor Code. In particular, the provisions of Article 113 of the Code apply. According to the norm, it is necessary:

1. Obtain the employee's consent in writing.
2. Take into account the opinion of the elected body of the trade union.
3. Notify the employee of the right to refuse work upon signature.
4. Issue an order.

In addition, the employer must take into account the employee’s health condition. If the latter has contraindications, involvement in overtime work is not allowed.

As for payment, the double rate is due:

1. Piece workers. Double piece rates are used in the calculations.
2. Persons whose work is paid at hourly (daily) rates. For them, the calculation is made using a double rate.
3. Salaried employees. They make a calculation in the amount of no less than a single rate (hourly or daily) in addition to the salary if the subject worked within the monthly norm, and if in excess of it - in the amount of a double rate.

As for working at night, even with an irregular schedule it is recognized as a deviation from the norm. Consequently, involvement in night work is paid at an increased rate - at least 20% is added to the salary (rate).

Features of payment for overtime work

They are mentioned in Article 152 of the Labor Code of the Russian Federation. According to the norm, overtime work for the first 2 hours is paid at one and a half times, and for subsequent periods - at double. Specific dimensions may be established in a collective or labor agreement, local act.

The calculations use the sums of the monthly average, as well as the average daily earnings. In Art. 152 does not specify a specific calculation procedure. In this regard, as the Ministry of Health and Social Development explains in Letter No. 16-4/2059436 of 2014, calculations can be made according to the rules of Art. 153. In accordance with it, minimum size double payment is recognized as a double tariff without incentives and compensation payments. The hourly rate should be calculated by dividing the salary established for the employee by the average monthly number of hours, depending on the length of the week. Using average monthly and average daily earnings allows you to receive the same amount for the same number of hours worked in different months.

According to Art. 152 TK, cash payment may be replaced by additional rest at the employee’s discretion. In this case, its duration must be no less than the duration of overtime work.

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