Restrictions on overtime work. When is it permissible to engage an employee to work overtime? Overtime work according to the Labor Code of the Russian Federation

It happens that the employer is forced to involve employees in work outside the working hours established for them, for example, in the evenings during a normal 8-hour working day or on weekends. Such work is (Article 97 of the Labor Code of the Russian Federation):

• or overtime;
• or working on irregular working hours.

Let's talk about overtime hours and see what the acceptable duration is overtime for each employee.

Processing under the Labor Code

Overtime hours are work performed by an employee (Article 99 of the Labor Code of the Russian Federation):

• firstly, at the initiative of the employer;
• secondly, outside the duration established for the employee daily work(shifts), and in the case of cumulative accounting of working time - in excess of the normal number of working hours for accounting period.

As you can see, in order to recognize overtime work, both conditions must be met. For example, if an employee performs some work at the end of his working day on his own initiative, then such work is not overtime and should not be paid as overtime (Letter of the Ministry of Labor dated 03/05/2018 N 14-2/B-149). In addition, for such work the employer is not obliged to provide the employee with additional days of rest (Letter of Rostrud dated March 18, 2008 N 658-6-0).

Let us note that involvement in overtime work should not be systematic (Letter of Rostrud dated 06/07/2008 N 1316-6-1). That is, the employer must initially plan the work of employees so as not to include overtime in the work schedule.

How many hours per month can you work according to the Labor Code?

The duration of overtime work should not exceed 4 hours for each employee for 2 consecutive days. There is another restriction: overtime work should not exceed 120 hours per year for each employee (Article 99 of the Labor Code of the Russian Federation).

In cases where summarized working time recording is established for an employee, it is important to consider the following. The employer determines in the internal rules labor regulations accounting period: month, quarter or other period up to a year (Article 104 of the Labor Code of the Russian Federation). The standard working time for the accounting period must be equal to the standard established for the corresponding category of workers, but not exceed 40 hours per week. And only at the end of the accounting period will it be clear whether any work was done overtime for the employee and whether it should be paid additionally.

For example, for an employee the accounting period is a quarter. Standard working hours with a 40-hour shift working week in the first quarter of 2020 - 456 hours. Let's assume the person worked 458 hours during this period. This means that 2 hours should be paid as overtime. We talked about payment for overtime work when recording working hours together.

And it is important to know the following. Even if the number of overtime hours worked by an employee is more than the maximum determined by the Labor Code, the employer must still pay for such overtime in full (Definition of the Constitutional Court of December 19, 2019 N 3363-O).

Overtime work in hazardous working conditions

Workers engaged in work with harmful conditions labor, a shortened 36-hour working week was established. Can they be asked to work overtime? By general rules possible if the following conditions are met (Article 99 of the Labor Code of the Russian Federation):

• employees have given written consent to perform overtime work, or this is an exceptional case of involvement in overtime work, when the employee’s consent is not required;
• Overtime work must not exceed the maximum duration given above.

When you read the rules Labor Code regarding overtime and weekend work, they seem extremely simple. However, in practice their use causes numerous difficulties.

What is written in the Labor Code...

So, let's first look at what is written in the Labor Code.

Overtime work - work performed by an employee on the initiative of the employer outside set duration working hours, daily work (shift), as well as work in excess of the normal number of working hours during the accounting period (according to Part 1 of Article 99 of the Labor Code of the Russian Federation).

Part 5 of the same Article 99 of the Labor Code of the Russian Federation states that overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year.

Article 152 of the Labor Code of the Russian Federation states that overtime work is paid for the first two hours of work at least one and a half times the rate, for subsequent hours - at least double the rate.

According to Article 153 of the Labor Code of the Russian Federation, work on weekends and non-working holidays is paid at least double:

• for piece workers - no less than double piece rates;
• employees whose work is paid at daily and hourly rates - in the amount of at least double the daily or hourly rate;
• for employees receiving a monthly salary - in the amount of at least a single daily or hourly rate in excess of the salary, if work on a day off and a non-working holiday was carried out within monthly norm working time, and in an amount of at least double the hourly or daily rate in addition to the salary, if the work was performed in excess of the monthly norm.

Let's explain these rules using simple examples.

So, we have cited the norms of the Labor Code. Now we will try to explain using simple examples how to apply these provisions.

What is overtime work

So, overtime work is work performed by an employee at the initiative of the employer outside the established working hours:

• daily work (shift) (see Example 1), as well as
• working in excess of the normal number of working hours during the accounting period (see Example 2).

Restrictions on overtime work

Overtime work must not exceed four hours for each employee on two consecutive days and 120 hours per year. In this norm, too, at first glance, everything is simple.

Overtime pay

Overtime work is paid for the first two hours of work at least one and a half times the rate, for subsequent hours at least twice the rate. Well, here too everything seems very simple.

Continuation of Example 3

Continuation of Example 4

Continuation of Example 2

Payment on weekends

Work on weekends and non-working holidays is paid at least double the amount:

• for piece workers - no less than double piece rates (see Example 8);
• employees whose work is paid at daily and hourly rates - in the amount of at least double the daily or hourly rate (see Example 9);
• for employees receiving a monthly salary - in the amount of no less than a single daily or hourly rate in excess of the salary, if work on a weekend or non-working holiday was carried out within the monthly working time standard, and in an amount of at least double the hourly or daily rate in excess of the salary, if the work was produced in excess of the monthly norm (see Example 10).

Using simple examples, we explained how the law works. Now let’s look at the “tasks” that are more complicated.

Are overtime and weekend work the same thing?

So, it would seem that everything is simple, but in fact the norms of our legislation are drawn up in such a way that we often do not know how to apply them. Let's think about whether the concepts of “overtime work” and “work on weekends” are identical? If you try to answer this question, you will find that in some cases we equate these concepts with each other, and in others we consider them different from each other. Moreover, we are usually guided by common sense, and not by the literal rule of law. Let's give a specific example.

Even more a difficult situation adds up when it comes to paying for weekend work. In simple situations, everything is really clear: if a person works overtime on weekdays, then we pay the first two hours of work at one and a half times the rate, and the next - at double the rate. If a person is hired to work on weekends, then wage All hours will be charged at double rate. Reading the rules regarding pay on weekends and for overtime work, we are absolutely sure that these are different things and such work must be paid in different ways. However, usually, if an organization hires employees to work on weekends, then they work 8 hours (the same as on weekdays), which are paid double, but not 13, as written in the letter. In this case, the dispute appears to be as follows. The workers, who appear to work 8-hour shifts over a five-day work week, were brought in to work on weekends. Organization of an enterprise, having read that Article 153 of the Labor Code of the Russian Federation states that work on weekends and non-working holidays is paid at least double the amount, and multiplied the hourly tariff rate when paying for 2. The State Labor Inspectorate considered 5 hours that were worked beyond 8 hours normal duration working hours, overtime. Therefore, in her opinion, overtime for the first two hours should be paid according to the formula: double payment for a day off is multiplied by one and a half for overtime work, plus for the next three hours payment is made according to the formula: double payment (for a day off) multiplied by 2 (for overtime work). The logic seemed strange to the organization, since at first glance it seems that the double amount for working on a day off already includes payment for the fact that the employee works extra time. Of course, this situation is controversial from the point of view of legal assessment, because the legislation in this case can be turned this way or that way.

Let us turn again to Article 99 of the Labor Code of the Russian Federation, according to which overtime is considered work performed at the initiative of the employer outside of:

1. Normal working hours.
2. Daily work (shift).
3. Working in excess of the normal number of working hours during an accounting period.

On the one hand, the logic of the labor inspectorate seems correct. After all, if the duration of daily work (shift) is 8 hours, then all the remaining time that exceeds this limit is work outside the daily work (shift). That is, it must be regarded (see point 2 of the list) as overtime work and paid according to the rules of Article 152 of the Labor Code of the Russian Federation, which states that overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least than double the size. On the other hand, work on a weekend is always work outside the normal working hours (see point 1). After all, in this case the person will work more than 40 hours a week. But no one says that the first two hours of work on a day off must first be paid at double the rate, multiplied by one and a half, and the subsequent hours at double the rate, multiplied by two. But if the number of hours worked by him does not deviate from the normal duration of the work shift, there is no conversation about payment for that day according to the rules of Article 152.

Because judicial practice There is no application of this article, nor is there any explanation on this issue; it is impossible to say which side is absolutely right. After all, the legislation here can be turned in one direction or the other. In addition, it is not clear: if the extra 5 hours were regarded as overtime, why this was not classified as an offense, because, in accordance with Article 99 of the Labor Code of the Russian Federation, overtime work should not exceed four hours for each employee for two days in a row. Well, on my own behalf, I can advise: to prevent such disputes with the labor inspectorate from arising, do not force an employee to work on a day off longer than the normal working hours on weekdays.

How to pay for overtime work and work on weekends when recording working hours?

Document fragment

Problems often arise with the payment of overtime work and work on weekends when recording working hours together. So, let's try to figure out how payment occurs using simple examples.

Typically, summarized working time records are kept at enterprises when shift schedule work. In this case, as a rule, either a year or a month is taken as the accounting period. If in the accounting period the number of hours exceeds the normal working hours, then the first two such hours are paid at one and a half times the rate, the rest - at double.

When drawing up a work schedule, you should take into account two norms of the Labor Code. Firstly, the norm according to which work for two shifts in a row is not allowed, and secondly, the norm according to which continuous rest must be at least 42 hours a week.

Sometimes, according to the schedule, the working day of an employee working in shifts falls on a generally recognized weekend or holiday. The question arises: how to pay for work on such days, at double or single rates? The answer to this can be given as follows: if such an employee’s working day falls on a holiday, he must be paid at double rates (even if the number of hours in the accounting period does not exceed the normal number of hours).

As for weekends, the relevant norm of the Labor Code of the Russian Federation we're talking about about the days off of specific employees, and not about generally accepted days off in general. In other words, if, for example, an employee’s working day falls on Sunday, he must be paid in a single amount, but if you ask a person to leave on the day when he is scheduled to rest, then this work must be paid double (even if the number of hours in the accounting period does not exceed the normal number of hours).

At some enterprises, management and personnel officers sincerely believe that if a production facility keeps a summary record of working time, then a person can be forced to go on his scheduled day off, and if the number of hours in the accounting period does not go beyond normal, he can be paid such work in a single size. This approach is absolutely wrong. And if on a generally recognized day off the work of the “shift worker” is paid in a single amount, then on his own - with compensation for such injustice - in a double amount.

Let's try to understand the situation described by the author of the letter. If you look at production calendar, then we will see that in January the normal working hours are 128 hours. A work schedule was drawn up, according to which the employee had to work 156 hours, including 32 hours of holidays. As we can see, the employee, according to the schedule, must work significantly more than normal working hours in January. But since the accounting period is a year, in subsequent months, in theory, such overtime should be compensated (that is, the person drawing up the schedule should try to make sure that the employee works less than the normal number of hours in February, March, etc.) . If a person worked according to the schedule, then we would pay him double for 32 holiday hours, and single pay for the remaining hours (156 - 32 = 124 hours). And at the end of the year we would look at whether our employee has “extra” hours. If they were available, an appropriate additional payment would be made (taking into account that the first two hours of overtime work are paid at a single rate, and the next - at a double rate). However, the employee worked 184 hours instead of the 156 hours scheduled, that is, 28 hours more! Of all the hours worked, 48 are holidays. In this case, a number of questions arise: why did it happen that the employee did not work according to schedule? With such a number of hours, was it possible to comply with the legal requirements, according to which continuous weekly rest must be at least 42 hours and working in two shifts is not allowed? Without seeing the work schedule and time sheet, one can only assume that the employee went to work on his days off. Accordingly, both 48 hours on holidays and 28 hours on weekends in this case must be paid at double the rate. The remaining hours of work are paid in a single amount. You will determine at the end of the year whether there is any processing that needs to be paid at an increased rate.

1. From the concept of overtime work given in Part 1 of Article 99 of the Labor Code of the Russian Federation, it follows that it is carried out 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.

2. A significant feature of the commented article (in addition to the definition of the concept of overtime work) should also include changes to the procedure for attracting overtime work. Remaining in general on the position of freedom of labor, the commented article allows the employer to engage an employee in overtime work only with his written consent and in strictly specified cases (clauses 1 - 3, part 2).

At the same time, the article in question makes it possible to involve an employee in overtime work without his consent in cases of various emergency circumstances and provides for such circumstances (clauses 1 - 3, part 3) that do not contradict international standards and part 4 of Art. 4 TK.

In all other cases, in addition to those specified in clauses 1 - 3, part 2 and clauses 1 - 3, part 3 of this article, involvement in overtime work is allowed with the written consent of the employee, taking into account the opinion of the elected body of the primary trade union organization.

Work beyond the established working hours of persons with irregular working hours is not considered overtime.

The basis for engaging in overtime work is an order (instruction) of the employer. If the corresponding order was not issued, but it is established that there was a verbal order from one of the managers (for example, a foreman), the work should also be considered overtime.

3. According to Part 5 of Art. 99 of the Labor Code of the Russian Federation, pregnant women, workers under 18 years of age and other categories of workers in accordance with the Labor Code and other federal laws, for example, persons with whom an apprenticeship agreement has been concluded (Part 3 of Article 203 of the Labor Code) are not allowed to work overtime.

Women with children under 3 years of age may be allowed to perform such work with their written consent and provided that overtime work is not prohibited for them for medical reasons. A similar procedure is established for people with disabilities. At the same time, both of them must be familiarized with a signature of their right to refuse overtime work. These guarantees also apply to employees with disabled children under the age of 18; workers caring for sick members of their families in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation; mothers and fathers raising children of the appropriate age without a spouse (Part 3 of Article 259 of the Labor Code), and for guardians (trustees) of minors (Article 264 of the Labor Code).

4. As follows from the content of Part 5 of Article 99 of the Labor Code of the Russian Federation, the prohibition to involve workers of specific categories in overtime work is established by the Labor Code or other federal law. However, this does not mean that with the adoption of the new Labor Code, similar guarantees established for certain categories of workers by by-laws lose their significance. They are subject to application until the adoption of relevant federal laws(Article 423 of the Labor Code). Therefore, it is also impossible to involve persons with an active form of tuberculosis in overtime work; workers involved in production especially harmful substances(benzidine, dianisidine, alpha and beta naphthalamine), when working with radioactive substances and sources of ionizing radiation; at vibration-hazardous and other jobs.

Overtime work is compensated by increased payment or (at the employee’s request) by the provision of additional rest time of no less than the time worked overtime (see Article 152 and commentary thereto).

5. Art. 99 of the Labor Code of the Russian Federation provides for the maximum, i.e. the maximum permissible number of hours of overtime work per year and for 2 consecutive days for each employee. Industry agreements, collective agreements, regulations on working time and rest time for certain categories of workers may also establish a maximum monthly number of hours of overtime work.

The duration of overtime work should not exceed 4 hours for each employee for 2 consecutive days and 120 hours per year.

The employer is required to ensure that each employee's overtime hours are accurately recorded. For work time tracking, see comment. to Art. 91

The law allows employees to be involved in it only in special cases, and almost always the employer must obtain their consent to the processing. The procedure for engaging in overtime work must be strictly observed in order to avoid problems with regulatory and law enforcement agencies.

Working overtime: what an employer needs to know

The basic requirements that must be observed when involving subordinates in overtime work are set out in the Labor Code. In particular, Article 152 of the Labor Code of the Russian Federation explains how overtime work should be compensated, and Article 99 lists situations when it is permissible. Article 99, as well as individual articles of the Labor Code of the Russian Federation, indicates categories of employees who are prohibited from working overtime.

Overtime and its restrictions

The boundaries established by law concern not only the definition of who is not allowed to work overtime, but also the procedure for attracting workers to “overtime.” The following are not allowed:

• pregnant employees, minor workers (Article 99 of the Labor Code of the Russian Federation);
• persons registered under a student agreement (Article 203 of the Labor Code of the Russian Federation);
• workers who have medical contraindications (for example, the still in force Resolution of the Council of People's Commissars of the USSR No. 15 of 01/05/1943 does not allow people with disabilities to work overtime open form tuberculosis).

In most cases, involving other employees in overtime work is possible only with their written consent. It is not required only in some situations, namely (Article 99 of the Labor Code of the Russian Federation):

• if the employee’s actions should prevent a possible disaster, industrial accident, etc.;
• if the need for work is dictated by emergency circumstances (for example, the introduction of martial law or a natural disaster);
• if you need to establish (ensure) functioning centralized systems– heating, water supply, etc.

Involving an employee in overtime work is allowed taking into account the opinion of the trade union, if there is a union branch at the enterprise (which, however, is very rare today).

Overtime work for disabled people, women with children under 3 years of age, is permissible only with their written consent, unless this is prohibited for health reasons (in accordance with a medical report), and they must familiarize themselves with their right to refuse overtime work upon signature.

Professional restrictions

For representatives of some professions there are additional restrictions. Thus, the duration of overtime work for drivers should not exceed 4 hours - for two days in a row. And per year, the number of hours worked should not exceed 120. This rule was established by Order of the Ministry of Transport of the Russian Federation No. 15 of August 20, 2004. It fully complies with Article 99 of the Labor Code, which determines the maximum duration of overtime work. Any employer must comply with this standard.

However, another document (" Sanitary rules on occupational health of car drivers" dated 05.05.1988, clause 5.3) does not allow drivers to work overtime:

• who have less than 3 years of driving experience;
• over 55 years old;
• those who have been ill for a long time and often during the year - at least 3 times, one of which lasted more than 30 days;
• admitted to work as an exception (by a medical board).

What is the duration of overtime work for each employee occupying a certain position can be established not only by departmental order, but also local act organization, for example, by relevant regulations. The main thing is to adhere to the requirement mentioned above: the maximum duration of overtime work should not exceed the norm set out in Article 99 of the Labor Code.

Some professional affiliation gives the right to reduced working hours. In particular, it is established for doctors and teachers by Articles 333, 350 of the Labor Code. In this case, overtime is considered work outside the shortened shift.

Overtime accounting

Since overtime work should not exceed a certain number of hours per year, the employer is obliged to keep a strict count of how much time each employee worked over the norm. The information is entered into the working time sheet.

Overtime work is considered such if the number of hours worked exceeds the norm for a certain time. This refers to a situation where an individual shift may be less or more than a normal working day, but these “deviations” are balanced within the selected accounting period - month, quarter, year (Article 104 of the Labor Code).

How is overtime compensated?

Overtime work, for whatever reason it is needed, is paid additionally to employees. The procedure for its payment is determined by Article 152 of the Labor Code, from which it follows that the first two hours of overtime are compensated to the subordinate at one and a half times, and beyond that - at double. And these are the minimum amounts of additional payment that the employer has the right to increase.

The same article of the Labor Code states whether overtime work can be compensated for by additional rest. This is possible at the request of the employee himself. In this case, his rest time should be no less than his processing time.

The beginning and end of the working day is provided for, according to Article 100 of the Labor Code, by internal regulations. And it is important to note that overtime work is always assigned to the employee by order (instruction) of management. If a subordinate is delayed at the workplace on his own initiative, his overtime is not considered “overtime”, and the employee is not entitled to compensation by law.

The legislator defines work beyond normal working hours outside the accounting period established for of this employee, as overtime or as work on irregular working hours.

Overtime work- this is the employee’s fulfillment of his labor function outside normal limits at the initiative of the employer or with his knowledge.

Overtime involves both exceeding the norm and violating it. At the same time, according to the Labor Code of the Russian Federation, in some cases the employee’s consent is not required (Part 3 of Article 99), in others, work is performed only with the written consent of the employee (Part 2 of Article 99) and is carried out taking into account the opinion of the elected body of the primary trade union organization (Part 4 Article 99).

Overtime work is associated with increased energy costs and reduced rest time, therefore labor legislation establishes a number of guarantees for those performing it. According to the Labor Code of the Russian Federation, these include, in particular: limitation of overtime work (four hours for two days in a row and 120 hours per year - part 6 of article 99); increased payment (for the first two hours, no less than one and a half times, for subsequent hours - no less than double - Article 152); a special procedure defining the procedure for attracting overtime work; prohibition to involve workers in overtime work who need increased social protection, for example, pregnant women and workers under the age of 18 (part 5 of article 99); a special procedure for involving certain categories of employees in overtime work. Thus, overtime work by disabled people and women with children under three years of age is allowed only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report. These workers must be familiarized with their signature to refuse overtime work (Part 5 of Article 99 of the Labor Code of the Russian Federation).

These guarantees also apply to employees with disabled children under the age of 18; workers caring for sick members of their family in accordance with a medical certificate issued in the manner established by labor legislation; mothers and fathers raising children of the corresponding age without a spouse (Part 3 of Article 259 of the Labor Code of the Russian Federation), and for guardians (trustees) of minors (Article 264 of the Labor Code of the Russian Federation).

The head of the organization issues an order (instruction) to involve employees in overtime work. The order specifies the basis for engaging in overtime work, for example, the need to eliminate the consequences of an industrial accident, the prevention of an industrial accident (Article 99 of the Labor Code of the Russian Federation). This order indicates the last name, first name, and patronymic of the workers involved in its implementation, as well as the duration of such work.

Judicial practice proceeds from the fact that compliance established by law the procedure for inviting employees to work overtime is mandatory. So, if, in violation of the requirements of the law, the order (instruction) to engage in overtime work was not issued by the head of the organization, and the employees worked after the end of the shift on the basis of an oral instruction from the head of the department, for example, the head of the workshop, then payment for their work must be made in an increased amount as overtime.

Part 2 Art. 99 of the Labor Code of the Russian Federation contains a list of overtime work, the performance of which requires the written consent of the employee. Such cases include the need to complete the work begun, if failure to do so could lead to serious consequences, temporary work on the repair and restoration of mechanisms or structures, the malfunction of which could cause the cessation of work for a significant number of workers, as well as the continuation of work in the absence of a replacement worker, if work does not allow a break.

The list of circumstances that allow an employer to involve employees in overtime work without their written consent is given in Part 3 of Art. 99 Labor Code of the Russian Federation. This refers to emergency circumstances that threaten life, normal living conditions of the population or part of it, the performance of work necessary to prevent disasters, industrial accidents, eliminate the consequences of disasters, accidents and natural disasters, the performance of public necessary work to eliminate violations of life support systems.

Part 4 art. 99 of the Labor Code of the Russian Federation provides for the possibility of involving employees in overtime work in other cases, in addition to the emergency and unforeseen circumstances listed in the article. The law does not define the concept of “other cases”, which allows the employer to use overtime work in case of any complications in the organization’s activities, individual entrepreneur. As an additional guarantee of limiting overtime work in the absence of emergency or unforeseen circumstances provided for in Parts 2 and 3 of Art. 99 of the Labor Code of the Russian Federation, the employer must comply with the requirements of Art. 372 of the Labor Code of the Russian Federation - request the opinion of the elected body of the primary trade union organization. The requirement to take into account the opinion of the elected body of the primary trade union organization can be considered fulfilled if the employer notified this body in advance of the need to use overtime work, the reasons for which such a need arose, and the volume (duration) of overtime work. When making a final decision, the employer must have the opinion of the trade union body.

A unique type of overtime work, not mentioned in the Labor Code of the Russian Federation, but often used in practice, is duty. The term “duty” is used in three senses:

• the employee performs his usual job duties within the framework of his profession, qualifications during shift work;
• performance of work duties that are not included in the scope of his normal work duties;
• the employee being in a state of readiness to perform work duties at the request of the employer.

Duty in his different types used, for example, in housing and communal services, energy organizations, education, government institutions. Significantly different meanings given by industry and local regulations into the concept of “duty” does not allow us to unambiguously determine its legal essence. This often allows the employer to deprive the employee of the guarantees established for him by labor legislation.

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