What does irregular worker mean? Irregular working hours: practical issues of application. What the employer has no right to

Unregulated work during the day is an alternative to an eight-hour working day. The management of the enterprise can make an independent decision whether the standard amount of time is enough for employees to fulfill the plan, or whether they need additional working hours.

If such a need exists, then certain workers are provided irregular working hours.

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What does it mean?

An irregular working day is considered a special work regime, during which the manager can give instructions for certain employees to perform assigned tasks outside of normal working hours. work time(Article 101 of the Labor Code of the Russian Federation).

According to the law (previously under the Labor Code, now the Labor Code of the Russian Federation), this rule is prescribed in. The job candidate agrees to it when he puts his signature on certain documents. For this reason, the manager may not ask the candidate's direct consent.

Sample employment contract with irregular working hours, download for free.

An employee may assume that he will need to work additional hours only in case of serious need.

According to the law intended to regulate relations with employees, sufficient attention is devoted to establishing temporary standards for presence at the workplace, and a period of rest to restore the body’s strength.

IN "Working hours" the hours when the employee is obliged to stay on the territory of the organization while performing their official duties. This section indicates the time that the employee devotes to his duties during the day.

In addition, there are time limits of working months and years. Rest time is a specific concept, thanks to which the duration of rest of each day and vacations are controlled.

Enterprises usually operate on a regular five-day week, and work begins at nine in the morning. Specific workers at the same time, they can start their work, for example, at seven in the morning, or leave their place of work at eleven in the evening.

Read our article on how to draw up an employment contract with irregular working hours.

Duration

Forty hours is the norm for a regular working week (Article 91 of the Labor Code of the Russian Federation). If we consider a five-day workday, then the employee needs to spend eight hours at work every day. In this circumstance, the director may increase these standards:

The standards can be increased in two ways:

1. working overtime hours;
2. increasing the duration of the work schedule.

According to the law, there are limits to overtime: this overtime cannot exceed one hundred and twenty hours per year. This means that it is unacceptable to ask an employee to work more than four hours for two days in a row without a day off.

As for an unlimited working day, the law does not provide for specific hourly limits. An irregular day is sometimes possible, but it is prohibited to draw up permanent schedules according to such a scheme. In addition, the manager must require such an employee for good reasons.

An employee who is assigned to work on non-fixed hours must be aware of certain circumstances:

• The manager has the right not to constantly be interested in whether the employee agrees with such. He receives the employee’s consent when signing an employment contract.
• If an employee does not want to work irregular hours, this may be regarded as failure to perform work duties.

But, it must be taken into account that at the moment there is no uniform regulation for resolving such disputes in judicial proceedings.

In any case, you should adhere to the rule that such training cannot be done every day.

Although, this graph is called irregular days, it must have some limits on duration. It is considered irregular due to its difference from the normal regime in the organization.

A citizen working an irregular day must be aware of that this is not his permanent schedule. On other days, the employee has the right to start and end the work day at the same time as his colleagues.

In addition, irregularity is not a reason for performing work that is not included in the employee’s duties.

Working hours are increasing, but this does not mean additional responsibilities.

The worker has the right, due to work on such days, to an unscheduled weekend of three days at the expense of the organization. This rest period can be combined with the required vacation. In addition, the employee has the right to request cash payment in lieu of due vacation.

Time log

To record the hours of an employee who works an unlimited number of days, the company maintains a log. with recording of labor time above the norm(Part 4, Article 91 of the Labor Code of the Russian Federation).

At the moment, there are no special instructions that require recording hours of work in a journal, but this method is convenient. Thanks to the journal, you can easily organize the necessary data in a certain order.

It is necessary to keep records of all dates that a citizen worked in irregular hours (Article 101 of the Labor Code of the Russian Federation), since registration of processing is mandatory. Although there is no additional bonus for this, the employee can count on one more (Article 119 of the Labor Code of the Russian Federation).

You will find a sample journal for recording irregular hours.

Due to the fact that irregular work does not occur on a constant basis, it is recommended to have an additional register for such time registration.

On the first sheet fill in:

• list number;
• what organisation;
• the dates on which they started filling out the journal, as well as the end date;
• name, surname and position of the person responsible for the entries in the journal.

Data must be filled in once a week, or according to the scheme that the manager needs.

List of positions with irregular working hours

A typical work week is considered to be five days with a duration of eight working hours. Many companies operate according to this scheme. But, there is another mode of work, which is considered an irregular working day and valid for certain employees, and not for the entire company as a whole.

This list includes the following employees:

1. Director.
2. Branch manager.
3. Department head.
4. Deputy Manager.
5. Chief Accountant.
6. Warehouse Manager.
7. Personal driver.
8. And similar workers whose duties include performing their work after the end of the working day.

For example, the usual length of working time for drivers cannot be more than forty hours a week. For drivers who work a five-day shift, the usual duration of any day cannot be more than eight hours. If the driver works six days a week with only one day off, then the length of the day should not exceed seven hours.

If drivers are engaged in transportation for healthcare institutions, public utilities and emergency services, telephone communication, management enterprises and the like, then it is permissible to increase the working hours of one day until twelve o'clock.

A specific condition for the working time of drivers is that they have a certain duration of driving the car during the day - nine o'clock. If driving a vehicle takes place in mountainous conditions, and the length of the bus is more than nine meters, then the time limit is eight hours.

In order for the standard to be met, the manager must keep a record of driving time, taking into account the permissible limits of the driver’s working hours.

How is overtime work different from irregular hours?

For most people, the concepts of "overtime" and "overtime" may be similar in definition, but According to the law, these concepts are clearly distinguished. A non-standard working period is a certain working regime, under which it is possible to attract certain employees in addition to their regular schedule.

To understand the difference, consider the fundamental differences:

1. When an employee comes to apply for a job, they do not talk to him about possible overtime hours.

If it concerns an irregular schedule, the candidate is informed of the existence of such a possibility.

2. The legislation specifies the duration of overtime hours.

Such work cannot be more than four hours for two days in a row, or one hundred and twenty hours throughout the year. A certain amount of hours irregular hours are not specified in the legislation.

3. Workers, employees and management may participate in overtime work.

Irregular hours are not defined for employees other than drivers.

4. Overtime work does not have pleasant bonuses in the form additional leave.

If an employee works irregular hours, then he is entitled to another vacation of twelve days, and sometimes a bonus.

A detailed explanation of irregular working hours in the video:

Since the legislation does not define the criteria for episodic involvement in work within an irregular day and the maximum number of overtime hours, in practice disputes very often arise between the employee and the employer. Let's try to figure it out.

Another feature of this work regime is the employer’s ability to engage an employee both before and after the end of a shift without obtaining his consent to work beyond the norm (Letter of Rostrud dated 06/07/2008 No. 1316-6-1). This position is confirmed by the recently issued Letter of the Ministry of Labor dated October 29, 2018 No. 14-2/OOG-8616. In the letter, officials remind that the introduction of an irregular working day should not change the established working hours, and overtime should not lead to the transformation of an irregular working day into an extended one.

If there is no provision in the employee’s employment contract regarding the irregularity of his working hours, but he is occasionally involved in work outside of his working standard, such an employee may also qualify for additional days off. However, he may choose compensation in money. In this case, you need to be guided new edition Art. 119 TK— the rule is excluded from it that if the employer does not provide additional leave for using an employee on an irregular day, overtime in excess of the standard working hours with the written consent of the employee is compensated as. Thus, the legislator does not recognize overtime during irregular hours as overtime work, which must be compensated by additional pay and has hourly restrictions.

At the same time, employees whose working hours are not standardized are subject to the rules regarding the beginning and end of the working day, providing them with weekly days off and rest on holidays. This means that attracting an employee to extra work on weekends and holidays it is possible only in compliance with the rules Art. 113 And Art. 153 Labor Code of the Russian Federation. This is also recalled in Letter of the Ministry of Labor No. 14-2/OOG-8616.

Night work is also a deviation from the norm, therefore it must be properly documented and paid at an increased rate established by local regulations or ( Art. 154 Labor Code of the Russian Federation).

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, internal rules labor regulations. It must also be agreed upon with the employees’ representative body (if there is one).

Sample order for approval of the list of positions

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.

Sample employment contract

This condition must also be indicated in the employment order.

Sample order

It is worth noting that if an employment contract has been concluded with an employee for a position that is not in the approved list of professions with irregular working hours, then this condition is unlawful. Consequently, the employee has the right to refuse to work beyond the working hours and on this basis he cannot be brought to disciplinary liability.

If an employee is transferred to a position for which irregular working hours are established, then the employer should:

• familiarize him with local regulations containing a list of positions with irregular working hours;
• to conclude additional agreement to the employment contract on the inclusion of conditions for irregular working hours and compensation for this nature of work;
• issue an appropriate order (in free form).

If the employee’s condition on irregular working hours is excluded, then the employer must enter into an additional agreement with him, which will contain a different work schedule, and issue a corresponding order.

Registration of attraction to work beyond the norm

The procedure for attracting workers to work beyond the norm during irregular working hours is not regulated. In practice, recruitment is often carried out on the basis of a verbal order from the boss or on the initiative of the employee himself who did not have time to complete the task. It seems that in order to guarantee the rights of employees, it is advisable for them to require a written order from the employer to engage in work beyond the norm, otherwise it will be difficult to prove the existence of such an expression of the employer’s will.

Work accounting

The working hours of an employee with irregular hours are recorded without taking into account the time worked in excess of the norm. This is due to the fact that he is not produced financial compensation, as in the case of overtime work, and additional annual leave is provided. But since Article 91 of the Labor Code of the Russian Federation It is determined that the employer is obliged to keep track of the actual hours worked by each employee; the employer can keep such records in a separate independently developed document, for example, a log book or a separate time sheet. This may come in handy if an emergency occurs while performing work outside of normal working hours.

Part-time and part-time work

According to Article 101 of the Labor Code of the Russian Federation, an employee working under conditions 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 days. 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 workweek. In this case, it will be possible for him to have an irregular working day (according to Art. 101 Labor Code of the Russian Federation) and, accordingly, compensation in the form of annual paid leave of at least three calendar days.

The concept is defined in Article 101. Labor Code RF. However, the practical application of this regime raises many questions. The legislator has not specified an assessment criterion by which this regime can be established for employees; the content of Article 101 of the Labor Code does not answer the question of what caused the need to attract employees to perform labor functions outside normal duration working hours. The concept of the episodic nature of attracting workers to perform their work duties during irregular working hours and the quantitative criterion for such episodicity remained unnoticed. The Labor Code does not determine what order of the employer is required for this - written or oral.

As a result of the ambiguities of the legal formulation, in practice, irregular working hours are replaced by the concept of “a work regime with constant overtime work without additional pay and restrictions on the maximum amount of such overtime,” which undoubtedly violates all labor protection standards and workers’ rights. Therefore, heads of organizations, lawyers and personnel department employees should understand the essence of this regime.

"Article 101. Irregular working hours

Irregular working hours- a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions 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. »

Analyzing Art. 101 of the Labor Code, it is necessary to highlight the following points:

1) irregular working hours- This special operating mode;

2) perform work on conditions irregular working hours can only individual workers(that is, it cannot be installed to all employees of the organization). Moreover, the list of these workers must initially be fixed by a collective agreement or other regulatory act;

3) to attract workers to work on irregular working hours, it is necessary employer's order;

4) workers can be involved in work on irregular working hours only if necessity;

5) workers can only be involved in work on irregular working hours sporadically(that is, occasionally, rather than regularly and systematically);

6) irregular working hours means going beyond normal working hours;

7) in conditions of irregular working hours, the employee must perform their labor functions.

8) outside the established working time for them - then under this regime the working time for them is still established (that is, it is defined and fixed).

When establishing a work schedule for an employee, the employer determines the following parameters: the actual duration of the working day (shift), the start and end time of work, the number of working hours in a week, month, year, work shifts (number of work shifts per day, duration of a work shift), duration and time for providing breaks for rest and meals, days off, etc.

For example, when hiring an office worker, the employer can determine his work schedule as follows:

“The employee has a standard working day of 8 hours a day. The working week is 40 hours. Work schedule – five-day work week from Monday to Friday, with days off – Saturday-Sunday. Work starts at 9.00. Ends at 18.00. During the working day, from 13.00 to 14.00, the employee is given a break for rest and food lasting 1 hour, which is not included in working hours.”

Installing office worker a special mode of work means that it differs from the normal order of distribution of work established in the organization according to all the parameters discussed above. That is, the duration of work per day may exceed 8 hours a day and 40 hours a week, the end of the working day may be later than 18.00, and the start of the working day may be earlier than 9.00 and breaks for rest and food may be at communications with this are provided at a different time and a different duration.

In relation to the so-called preferential category of workers (workers under the age of 18, disabled people of group I or II, workers engaged in work with hazardous and (or) hazardous conditions labor) for whom working hours are legally reduced, as well as workers for whom the employer is obliged to establish a part-time or part-time working week at their request (a pregnant woman, one of the parents (guardian, trustee) with a child under 14 years of age (disabled child under 18 years of age), a person caring for a sick family member in accordance with a medical report), irregular the working day is not established due to restrictions provided for by the Labor Code of the Russian Federation.

Even the People's Commissariat of Labor of the USSR, by its Resolution No. 106 of February 13, 1928 “On workers with irregular working hours” (note: The Resolution has not been canceled at the present time, that is, it is valid in points that do not contradict the Labor Code) allowed the use of irregular working hours in institutions enterprises and farms:

a) for administrative, managerial, technical and business personnel;

b) for persons whose work cannot be counted in time (consultants, instructors, agents, etc.);

c) for persons who allocate time for work at their own discretion;

d) for persons whose working time, due to the nature of the work, is divided into parts of indefinite duration.

In fact, a similar list is still used to determine the categories of workers for whom it is permissible to establish irregular working hours. For example, in the Rules for the provision of annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget, approved by Decree of the Government of the Russian Federation of December 11, 2002 No. 884. According to paragraph 2 of the Rules, the list of positions for employees with irregular working hours includes :

1) management, technical and business personnel and other persons whose work during the working day cannot be accurately accounted for (how much time was spent CEO it is almost impossible to calculate the cost of developing a strategic development plan);

2) persons who distribute working time at their own discretion (a striking example is creative workers)

3) persons whose working time, due to the nature of the work, is divided into parts of indefinite duration.

Despite the fact that such admissibility criteria are established as mandatory only for organizations financed from the federal budget, they are successfully applied in commercial organizations- we haven’t come up with others yet. But most often, the Lists of positions of employees with irregular working hours include employees who do not fully meet these criteria - managers of all structural divisions, ordinary specialists, etc.

The main requirement imposed by law is the need to secure a list of positions for workers with irregular working hours “in a collective agreement, agreement or in the internal labor regulations of the organization.” It is noteworthy that the last requirement is established only in relation to civil servants, and, therefore, workers are “excluded” from the scope of Article 101 of the Labor Code of the Russian Federation.

The corresponding paragraph of the internal labor regulations may look, for example, as follows:

“... 23. Employees occupying the corresponding positions that are indicated in the List of positions of employees with irregular working hours (Appendix 1 to these Rules) are involved in working on irregular working hours.”

It is important to note that according to Art. 190 of the Labor Code, the text of the internal labor regulations is approved by the employer, taking into account the opinion of the representative body. Moreover, since October 6, 2006, the procedure for taking into account the opinion of a representative body is carried out based on the requirements prescribed in Art. 372 of the Labor Code. Therefore, when establishing a list of positions for whom the employer can establish an irregular working day, this issue and the list itself is approved taking into account the opinion of the representative body.

In addition, since the work and rest regime during irregular working hours differs from general rules established in the organization, it must be reflected in the employment contract concluded with the employee (Article 57 of the Labor Code of the Russian Federation).

Article 57. Contents of the employment contract

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

The following conditions are mandatory for inclusion in an employment contract:

mode of working hours and rest time (if for of this employee it differs from the general rules in force for a given employer);

Many questions in practice, in particular during inspections, arise as to whether engagement in work during irregular working hours should be formalized by a written order from the employer or whether an oral order is sufficient. After all, this point was agreed upon with the employee when such a regime was established for him and it was spelled out in the employment contract.

If we proceed from the analogy of the norms of the Labor Code of the Russian Federation itself, then the order of the employer must be expressed in the order of the head of the organization or other official (take the same business trip, the direction to which is carried out by order of the employer - which is issued in the form of an order, the form of which is provided for by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval unified forms primary accounting documentation for the accounting of labor and its payment" - unified form T-9). At the same time, one cannot fail to take into account the fair question of employers - what then is the peculiarity of this regime, if the procedure for attracting it to it is similar to attracting an employee with a standardized working day to overtime work. After all, the need for such a schedule was agreed upon in advance with the employee and justified when drawing up the List. Any manager who has established such a regime, for example, for the chief engineer in connection with the need to monitor the operation of equipment and when working evening shifts, will call it absurd the proposal to issue orders every time it is necessary to monitor this, taking into account the fact that these are the normal duties for this position and are spelled out in job description this specialist.

Therefore, today we can say that the order can be written, or it can be oral - this must be decided by a specific employer, taking into account specific circumstances. The main thing is that in order to attract an employee to perform work outside the normal working hours, there must be appropriate grounds, that is, a situation must arise in which the work of a particular employee or group of workers is objectively necessary precisely outside the normal working hours.

To resolve issues of the need for such work, it is possible, for example, to determine at least an approximate list of circumstances, the occurrence of which requires the involvement of an employee or group of employees in work beyond set duration working day. Of course, it is impossible to list all the circumstances. But the generalization “due to production necessity” will not solve all the issues. Since the need to attract different workers depends largely on the positions they occupy, it is advisable to specify the circumstances in which workers may be required to work outside the normal length of the day in the provisions on structural divisions or that local act, which contains a list of positions for workers with irregular working hours.

Of course, it is impossible to list all the cases. Yes, and it is not necessary, since such strict regulation will limit the employer’s freedom to attract workers to work on irregular working hours and, in the event of cases not specified in local regulations, it may make it impossible to make operational decisions. But general principles It should still be determined, if only in order to reduce the uncontrolled and not always justified involvement of workers to work outside the normal working hours.

If an order to engage in such work is issued in writing, the grounds for engagement must be indicated in the stating part (preamble, if this is an order). If oral methods of attracting an employee to such work are used, then the motive (reason) for attracting an employee to work beyond the normal working day for an employee on an irregular working day must also be expressed and justified orally in each specific case.

Since this regime involves performing work beyond the established working hours, such engagement cannot be permanent. Article 101 of the Labor Code of the Russian Federation directly states that the involvement of workers in work beyond the normal length of the day should be of an episodic nature. An episode (from the gr. epeisodion) means separate incident, accidental event, circumstance or incident. “Occasionally” means that the employer sometimes, from time to time, from time to time, engages the employee to work on irregular working hours.

Constant (daily) work outside the normal working hours will violate the principle enshrined in Article 2 of the Labor Code of the Russian Federation, namely, ensuring the right of each employee to rest, including limiting working hours.

It is necessary to note that the Labor Code of the Russian Federation does not impose restrictions on the number of “episodes” of attracting an employee to work on conditions irregular working hours. However, this does not mean that this freedom should be abused uncontrollably.

Normal working hours cannot exceed 40 hours per week (Article 91 of the Labor Code of the Russian Federation). The standard working time, calculated in accordance with the production calendar for 2006, was 1980 hours with a 40-hour work week.

The specified working time norm applies to all work and rest modes. That is, the work schedule for an employee with irregular working hours is established in relation to the normal work schedule of the organization.

According to Art. 91 and 99 of the Labor Code, the employer is obliged to ensure that the hours worked by the employee are recorded under any regime; the Labor Code does not contain any exceptions for the regime of irregular working hours.

Article 91. Concept of working time. Normal working hours

Normal working hours cannot exceed 40 hours per week.

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

The employer is required to ensure that each employee's overtime hours are accurately recorded.

Accounting and control of attendance at work and departure from work is carried out in the work time sheet - unified forms T-12, T-13 in accordance with Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment " Since during an irregular working day the work is performed outside its normal duration, in practice such accounting can be made on the basis of data in the security post logs, use electronic systems control of working hours and other options convenient for the employer.

On terms irregular working hours the employee must perform only his job functions and only those specified in his employment contract and (or) in the job description (i.e. those that he performs every day as usual).

Taking into account the fact that the Labor Code defined irregular working hours based on the concept of overtime work. Articles 99 and 101 of the Labor Code contain the same expression: “...by order (initiative) of the employer outside the normal (established) working hours.” This expression is the definition of overtime.

Article 101. Irregular working hours

Irregular working hours are a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions. outside the established working hours for them…

Article 99. Overtime work

Overtime work is work performed by an employee at the initiative of the employer. outside the working hours established for the employee: daily work(shifts), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period....

Based on the analysis of the above two articles, we can conclude that if an employee with irregular working hours is involved in work beyond the established duration, then this is precisely overtime work, which is compensated not by payment, but by additional leave in accordance with Art. 119 of the Labor Code.

Moreover, before amendments are made to the Labor Code of the Russian Federation, which the text of Art. 119 of the Labor Code directly provided for the possibility of compensation for these overtimes precisely as overtime work. Below is a comparison of Art. 119 of the Labor Code before and after the introduction of changes to the Labor Code.

And for overtime work in any mode established by the Labor Code, the restriction also applies to irregular work hours:

Article 99. Overtime work

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

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

Moreover, as mentioned above, these overtime hours worked must be taken into account by the employer. In practice, issues of accounting for these hours often arise when tax audits. Taking into account the fact that when this regime is established, the employee is also given paid additional leave, which is subsequently attributed by the employer to the cost price (expenses), but at the same time, the employer stubbornly continues to put “eights” on the time sheet for such employees, the question arises regarding the validity of establishing this compensation (and attributing it to cost) in the absence of such a need. After all, the employer’s time sheet confirms that there was no overtime not only in a particular year, but also in previous years. Recognition of expenses as unreasonable leads, as a rule, to a requirement to attribute them to the organization’s profits.

That's why general recommendation, which I want to do, taking into account the requirements of Art. 91, 99 of the Labor Code, the employer MUST keep records of all hours worked by the employee, including overtime - it is imperative to organize such records. Often the main explanation for why an employer does not comply with these requirements is federal law it is stated that the accounting department will be “confused” if the employee has overtime entered on their work time sheet. But, firstly, the inconvenience of an official’s work in a company, naturally, cannot be recognized good reason according to which the organization violates the requirements of labor legislation, and secondly, the procedure for recording these hours precisely during irregular work hours can be organized outside the main time sheet (in an additional time sheet, journal, etc.).

Ministry of Finance Russian Federation

In accordance with Art. 252 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), expenses for profit tax purposes are recognized as expenses of the taxpayer, provided that they are documented and economically justified.

In this regard, and based on the norms of the Labor Code of the Russian Federation, the establishment of a working regime in the form of an irregular working day for employees must be formalized, in addition to the collective agreement (employment contract), by a local regulatory act (order or directive of the head of the organization)….

In cases where, when concluding an employment contract with an employee, the production necessity of working on irregular working hours is stipulated and all cases of work in excess of the normal working hours are formalized by local regulations, the organization’s expenses associated with paying additional vacations for employees with irregular working hours are taken into account in for profit taxation purposes as part of labor costs in accordance with Art. 255 of the Code….

Deputy Director of the Department of Tax and Customs Tariff Policy

S.V.RAZGULIN

The main thing, in addition to stipulating all these issues in a local act or employment contract, is also the existence of such a need and confirmation of this need by previous periods, that is, that the employer actually keeps records of such hours and monitors that within the framework of the year, overtime in excess of the norm for production calendar did not exceed 120 hours.

Below, I present the difference between a normal working day and an irregular working day, based on which the meaning of this special regime can be seen.

It can be argued that overtime work has nothing to do with irregular work hours, but, unfortunately, with the existing wording in Art. 99 and 101 it is extremely difficult to do this.

Often, courts interpret an irregular work schedule as a schedule that does not have work standards based on the following reasons:

• there is work that is irregular in nature or unstable in composition;
• it is impossible to determine the scope and content of the work before it begins;
• It is impossible to set a calendar date for the completion of work before the start of its execution;
• the completeness of coverage of the work performed by the available qualifications and composition is unknown official duties employee.

Based on this logic, the work of specialists in conditions of irregular working hours should differ in some features:

• specialists independently organize their work, determining the volume, content and timing of the task;
• specialists distribute working time at their own discretion, i.e., with the aim of conscientiously fulfilling their job responsibilities on the organization and implementation of production or technological process, voluntarily go to work before the start of the working day or stay late after work;
• The working day of specialists can be divided into parts of indefinite duration depending on the work, which is irregular in nature and unstable in composition.

But I understand that the very wording of Art. 101 of the Labor Code that an employee is involved in work in excess of the established norm by order of the employer (and not independently determined) and the expression itself “beyond the normal working hours”, that is, the normal duration of such workers still exists. In addition, with this logic, one will have to make the assumption that exactly how long an employee will work under this regime is not determined by law, which will go against all requirements for labor protection and the regime of work and rest for workers, and compensation in the form of three additional days vacation pays off any overtime, which will disrupt everything established requirements and guarantees for wages, compensation and employee guarantees. And, the most important thing is that, adhering to this point of view, many managers, specialists, etc. will have to refuse to establish an irregular regime. It is unlikely that a specialist can have the above schedule when he independently organizes his work, determining the volume, content and timing of the task; distributes working time at his own discretion, there is no clear scope of work, etc.

Summarizing:

The employer must:

1. Write down a list of positions, which will determine the circle of persons to whom the employer can establish irregular working hours. Have a justification for establishing this work schedule (justification for such a need and the impossibility of establishing a standardized working day)

2. Specify this regime and compensation for the employee in the employment contract.

3. Engage in work beyond normal working hours sporadically (occasionally, not constantly).

4. Express involvement in such work in writing or orally in the form of an order from the employer.

5. Keep records of actual hours of work, including those in excess of the established duration.

6. Do not exceed the norm of 120 hours per year and 4 hours for two days in a row when involved in work beyond the normal working hours.

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

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

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

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

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

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

• does not require a person’s consent to engage him in work outside of working hours;
• not formalized by order (an oral order from superiors is sufficient);
• payment for irregular working hours is not due;
• the number of occasional exits “after work” is not regulated;
• employees are entitled to leave for irregular working hours - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three additional days 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 is an irregular working day formalized in 2019?

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

How many hours can you overwork?

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

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

What is the difference between irregular hours and overtime work? Which employees should have irregular working hours? Who is entitled to additional leave and how much is it? What nuances should be taken into account when introducing an irregular regime?

The management of any company cares about its development and promotion in the market. The organization's entry into new level and its further growth depends to no small extent on the personnel who work in it.

Accordingly, in modern conditions business employers want to see in their employees not only knowledge, experience, qualifications, ingenuity, responsibility and others business qualities, but also a willingness to “live” with work. After all, no one is immune from the occurrence of any problems or issues that need to be urgently resolved. Also, situations very often arise when deadlines are running out, and like it or not, you need to be on time, etc.

For these reasons, employers are increasingly providing employees with irregular working hours, which for many organizations is preferable to working hours. Since an employee can be involved in overtime work only with his consent, the employer is also obliged to document each such case. Moreover, according to , the duration of such processing cannot exceed four hours for two days in a row and 120 hours per year. For overtime, increased compensation must be paid (for the first two hours at one and a half times, for subsequent hours at double) or, at the request of the employee, additional days of rest must be provided.

What is irregular mode?

It is important to know

If an employee has an irregular working day, then work beyond the established working hours is not reflected in the time sheet.

Note to HR

To establish an irregular working hours regime in an organization, you need to perform the following steps:

• justify the introduction of the regime;
• determine a list of employee positions;
• fix the regime and list of positions in the local act;
• include conditions on long working hours, guarantees and compensation in the employee’s employment contract;
• draw up separate orders for each position or employee who will have to switch to irregular working hours, and familiarize each employee with them.

If a special work regime is established for an employee who is already working, then he must also be familiarized with the list of positions and the procedure for attracting work in irregular hours. In addition, an additional agreement to the employment contract must be concluded with him, which will change the working hours and establish compensation. The agreement must contain the following information:

• date, number and place of detention;
• name of company;
• position and full name employee;
• details of the employment contract to which changes are made;
• new terms included in the contract.

Next, the employer must issue an order establishing an irregular working day for specific employees. The document is drawn up in any form, but it must indicate the date, number, place of publication, name of the organization, from what date and to whom irregular work hours are established, and the number of days of additional leave.

Once all the documents are completed, the employer, if necessary, has the right to give orders to the employee that it is necessary to stay late and finish the work.

Nuances

Despite all the attractiveness of this regime, its use is still due to some features that employers often do not focus their attention on. This can lead to conflicts with employees. In order to avoid this, the employer should remember the following nuances.

Firstly, the employer is obliged to provide the employee with additional days of annual paid leave, even if this employee has never been involved in work after the end of the working day. Since the provision of additional leave does not depend on the mandatory presence of overtime, but on the very fact of establishing an irregular working day for the employee (letter of Rostrud dated May 24, 2012 No. PG/3841-6-1).

The employer also independently determines the amount of additional leave, which cannot be less than three days. Labor legislation does not contain restrictions on the maximum number of days of additional leave.

note

An employer may not formalize an irregular working hours regime in an organization, but still systematically involve employees in work beyond the established working hours. In this case, bodies that supervise and control the labor sector or judicial authorities will be able to consider this as overtime work, for which appropriate compensation is due.

It is worth noting that for profit tax purposes, expenses for paying for annual additional leave lasting at least three calendar days are taken into account in actual amounts, unless the procedure for granting such leave, provided for, is violated current legislation Russian Federation (letters of the Ministry of Finance of Russia dated January 28, 2005 No. 03-03-01-04/1/38, dated January 13, 2006 No. 03-03-04/2/5, dated December 20, 2006 No. 03 -03-04/1/846, dated January 29, 2007 No. 03-03-06/4/6).

Secondly, based on the provisions of labor legislation, workers under the age of 18, pregnant women, disabled people, women with children under three years of age, fathers raising children without a mother, etc. cannot be recruited to work in irregular hours. , in which such employees work, may be included in the list of positions for which irregular working hours are introduced. In this case, the employer simply does not need to impose irregular hours on these employees.

Thirdly, if an employee is assigned part-time working hours, then it is also possible for him to have an irregular working day. Thus, Rostrud, in a letter dated April 19, 2010 No. 1073-6-1, explained that before changes were made to Article 101 of the Labor Code (until October 6, 2006), when determining an irregular working day, it was about the possibility of being involved in work outside the normal duration of working hours. Therefore, in accordance with the version of the Labor Code in force at that time, part-time workers could not be assigned an irregular working day. However, given changes made Article 101 of the Labor Code stipulates that part-time workers are not prohibited from establishing irregular working hours.

Fourthly, as mentioned above, the employer can give the employee a verbal order that he needs to stay late. However, to avoid controversial situations(for example, an employee ignores verbal orders) such an order is best made in writing in any form.

Fifthly, this regime does not give the employer the right to involve employees without their consent. This is due to the fact that days off are provided to all employees regardless of their working hours, and they can only be involved in work on weekends and holidays with their written consent (,). In this case, such work must be paid at least double the amount or, at the request of the employee, he may be given another day of rest.

L.F. Shtatnova, expert on labor legislation, for the magazine " Regulatory acts»

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