Overtime. Overtime work. TK RF. The practice of applying the rules

In general, in order to involve an employee in overtime work, the consent of the employee is required, but in some cases such consent may not be obtained. This article will provide explanations regarding the legality of involving employees in overtime work without the consent of the employee himself in 2020.

What is overtime work?

According to Art. 99 of the Labor Code of the Russian Federation, overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of summarized accounting of working hours, in excess of the normal number of working hours for the accounting period.

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

Calculation of overtime pay

Overtime pay is regulated by Art. 152 of the Labor Code of the Russian Federation:

In the event that night work is overtime, payment is made taking into account night work.

Example:

Loader Grishin G.G. On November 2, 2017, I had to work overtime (from 18:00 to 20:00).

Salary Grishin G.G. 10000 rubles.

In November 2017, 21 working shifts.

The duration of the working day is 8 hours.

Surcharge calculation:

- for the first 2 hours (18:00-20:00): (10000/21)/8*50%=59.52*2(hours)=119.04 rubles.

The author's course by Olga Likina (Accountant M.Video Management) is great for organizing personnel records in a company for beginners and accountants ⇓

How is overtime pay taxed?

In accordance with the tax legislation of the Russian Federation, the additional payment made for overtime work is not a payment exempt from taxation and insurance premiums.

The employee will be paid the amount, taking into account the deduction of personal income tax.

Overtime work requiring employee consent

In accordance with Art. 99 of the Labor Code of the Russian Federation, it is allowed to involve an employee with his consent in overtime work only in the following cases:

if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if the failure to perform (non-completion) of this work may lead to damage or destruction of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or create a threat to the life and health of people;
in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause a significant number of employees to stop working;
to continue work if the replacement employee does not appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

Overtime work without employee consent

In some cases, overtime work is allowed without the consent of the employee (Article 99 of the Labor Code of the Russian Federation):

in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
when performing socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems;
in the performance of work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that endanger the life or normal living conditions of the entire population or part of it.

Contraindications for overtime work

In accordance with Art. 99 of the Labor Code of the Russian Federation cannot work overtime or may not work:

Responsibility of the employer for violation of the law regarding overtime work

Violations when involving employees in overtime work refers to a violation of labor legislation, which entails the imposition of a penalty in accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation:

Person who violated the law	The amount of the administrative fine (rub.)
Violation detected for the first time
Executive	1 000 – 5 000
	5 000 – 10 000
	1 000 – 5 000
Entity	30 000 – 50 000
Violation re-discovered
Executive	10,000 - 20,000 or disqualification for 1-3 years
Official (accounting violation)	10,000 - 20,000 or disqualification for 1-2 years
Individual entrepreneur	10 000 – 20 000
Entity	50 000 – 70 000

Responsibility of the employee for violation of the law regarding overtime work

In the event that an employee has provided his written consent to overtime work, but has not started work, the employer has the right to apply a disciplinary sanction against this employee.

Questions and answers

I am 6 weeks pregnant. My shift is forced to urgently leave for family reasons. The director says there is no one to work. Does he have the right to make me work for my shift?

Answer: No, your director is absolutely wrong. In accordance with Art. 99 of the Labor Code of the Russian Federation, pregnant women are not involved in overtime work, and the gestational age is not specified. Thus, the director has no right to involve you in overtime work.

My child is 2.5 years old. The director wants me to work overtime. Can I refuse?

Answer: According to Art. 99 of the Labor Code of the Russian Federation, women with children under the age of 3 years can be involved in overtime work only with their written consent. Without your written consent, no one has the right to involve you in overtime work.

Every employee knows the unspoken rule: “if you don’t have time, stay after work.” This situation is not always caused by the incompetence and disorganization of the worker himself - often the employer is also to blame (incorrect organization of the work process, flaws in the calculation of the load, etc.), and simply circumstances (for example, an increased interest of customers in the company's products / services during the holidays). It is for the last two scenarios that the law introduced the concept of overtime work - forced processing, compensated to the employee in an increased amount.

What does the law mean by overtime work?

The concept of work outside the main work schedule is introduced by Article 99 of the Labor Code (LC) of the Russian Federation.

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

Legislator
Labor Code of the Russian Federation, part 1 of Art. 99

It is necessary to distinguish overtime employment from other similar phenomena - work in the framework of an irregular work schedule and even temporary transfer.

If an irregular framework of work is agreed with the worker (this is specially stipulated in the labor agreement with him), he cannot have overtime employment by definition. Such an employee can be involved in work simply by verbal order of the employer, overtime hours do not need to be taken into account, they are not subject to increased payment. Overtime employment is compensated to the employee on much more favorable terms. They are described in Art. 152 of the Labor Code of the Russian Federation.

Overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least twice the amount. At the request of the employee, overtime work, instead of increased pay, may be compensated by providing additional rest time, but not less than the time worked overtime.

Legislator
Labor Code of the Russian Federation, part 1 of Art. 152

Sometimes the employer believes that by attracting an employee to overtime work, he can entrust him with any work (even beyond the scope of the labor function), because the purpose of the involvement is to overcome some kind of emergency. However, this is not the case at all. According to Art. 99 of the Labor Code, work can only be performed within the framework of the duties specified in the contract. Otherwise, we are talking about a temporary transfer - and this is already a different design, and other conditions, and "masking" for processing is a direct violation of labor laws.

A separate point is processing with a summarized accounting of hours worked. This is somewhat different than "stay after work." Processing may occur at the end of the accounting period (month, quarter, etc. - as established by the contract). It should be understood that this cannot be planned in advance in the work schedule - it is imperative to follow the procedure for engaging in overtime work.

The controversial point is the application of the law to part-time employees (known to everyone 0.5 rates, 0.25 rates, etc.). Supporters of a systematic interpretation of the norms of the Labor Code see such a contradiction: Art. 22 of the Labor Code obliges the employer to provide all employees with equal pay for work of equal value. It turns out that a part-time employee is already being paid more (they work less, but get paid like everyone else), while ordinary workers cannot count on this. Supporters of a literal reading of the law appeal to the fact that Art. 99 clearly indicates: "... outside the working hours established for the employee ...". Part-time work is set individually, by contract, which means that work within the normal 40-hour week can be considered overtime. This point of view is confirmed by the letter of Rostrud dated 01.03.07 No. 474–6-0, but there is still no judicial practice.

Overtime is a pure administration initiative. And in such a common situation, when she did not require processing from the employee (even if she knew about them), the “extra” work is not subject to either increased payment, or even payment in a single amount. The employee is not entitled to initiate overtime work independently.

Overtime work should be distinguished from the personal initiative of the employee (some have their own reasons for staying late at work)

Based on the meaning of the norms of the article under consideration, it can be concluded that overtime work is the exception rather than the rule. There are restrictions on the number of such processing: 4 hours for two consecutive days, 120 hours for a year.

When you can and when you can not involve in overtime work

There is a closed list of situations when only his consent is enough to attract an employee to work overtime:

the objective impossibility of production to complete the task within the framework of the working day, if the consequences of its non-fulfillment can be deplorable (loss or damage to property, danger to people);
the need to adjust mechanisms, structures, if malfunctions can stop the work of many people;
the need to replace a colleague who did not come to work (with the simultaneous search for other replacement options), if the production process cannot be interrupted in any way.

It is allowed to work outside the work schedule and in other situations, but in addition to the approval of the employee, the employer will also need a trade union opinion. If there is no primary organization at the enterprise, this condition does not need to be observed, but a special procedure may be established in the local regulations of the enterprise (for example, approval by another collective body).

It is noteworthy that the opinion of the trade union is only taken into account - if you read the law literally, the approval of this organization is not necessary. The administration is obliged to notify the trade union and familiarize itself with its response before issuing an order, but it is not bound by the opinion of the trade union - it can also make the opposite decision.

Leaving after work without the consent of a working person is possible only in exceptional cases (their list is also closed):

the purpose of the work is to prevent a catastrophe or industrial accident, to eliminate their consequences;
work needs to be done for the life support of society (adjustment of centralized water supply systems, gas supply, etc.), but the emergence of problems was also sudden;
work is due to the special situation introduced on the territory (military, emergency).

Not every employee can be left after work. Involvement (even with their consent) is not subject to:

pregnant women;
minors;
students (Article 203 of the Labor Code);
suffering from an active form of tuberculosis (clause 4 of the Instruction, approved by the Decree of the Council of People's Commissars of the USSR of 01/05/1943 N 15).

And young mothers (the child is not even three years old) and disabled people in any case must give their consent, while receiving information about the opportunity to refuse. Art. 264 of the Labor Code gives young mothers the opportunity to avoid processing if it is prohibited by their medical certificate. The list of those whose written consent is required includes single mothers and fathers with children under five years of age, parents of disabled children, employees caring for a sick relative.

The procedure for issuing paid processing

The first thing a personnel officer should take care of is to determine the reason that caused the need for overtime work. The second is to find out if the employee belongs to one of the privileged categories. It makes sense to once again check whether there is a condition on irregular working hours in the labor agreement with the employee. It is the preparatory work that determines the further course of action.

The basis for the conclusions may be a memo from the head of the structural unit that initiated the procedure. It is addressed to the head of the enterprise, who decides on the advisability of launching the process and puts an appropriate resolution on it.

The initiative to involve in processing is manifested in the form of a memo addressed to the head of the enterprise

Employee Notification

There are two ways to notify an employee (if necessary):

by issuing a separate notice (recommended);
by getting acquainted with the order - a method quite consistent in the legal sense, but not entirely convenient in practice. If the employee does not agree with the order, it will be necessary to cancel it - and this is an additional "piece" of work.

The notification is made in any form. It is important to reflect in it:

factors that led to the need for processing;
the exact day and number of hours of work;
the nature of the work (not required, but desirable);
conditions of payment or other compensation for "extra" labor (according to the Labor Code), a proposal to choose one form or another.

Based on the variety of situations, several notification options can be developed at once:

Simple notification (no union, no explanation of the possibility to refuse).
If the employee is not in the benefits category, the reason for the involvement does not require the opinion of the union, a simple notice can be drawn up
Notification with a visa of a representative of the trade union committee. The opinion of the trade union in this situation should not be motivated - a visa “I do not mind / object” from an authorized member of the trade union committee is enough. It is most convenient to put this visa on the notice of the worker. But a separate request for the opinion of the trade union is not excluded.
If for some reason it is not possible to obtain a simple visa on notification of an employee, you can issue a separate request for a trade union opinion
Notification with a warning about the possibility of refusal.
The law requires a mandatory written explanation of the right to refuse for certain categories of employees

The employee must make an inscription on the notification that allows him to accurately interpret his expression of will:

In all cases when an employee is asked for consent to processing, it is quite possible that he will refuse. The employee is not obliged to motivate his decision, the employer is not entitled to apply any measures of influence. This completes the attraction process. Refusal is not possible in cases that involve the lack of approval of the employee in accordance with Art. 99 TK. Failure to leave may result in disciplinary action.

Administrative document

The basis for involvement is not the notification and approval of the employee, but the corresponding order. It is compiled on the basis of the collected documents (notices, opinions of the trade union, consent - if necessary). The form of the order is arbitrary, but the document must contain the following information:

employee data - full name, position;
an indication that he is involved in overtime work;
exact date(s) and time of work;
the procedure for compensation (an order from the accounting department - to pay in an increased amount or to the personnel department - to provide an additional period of rest).

If the employee was not given a notice (the second method was chosen - familiarization with the order), he must be familiarized with the document against signature. Still, you should check with him in advance about the method of compensation.

The order for involvement in overtime work is drawn up in any form

Accounting and payment of overtime work

Overtime work cannot be planned in advance (in the schedule), they are taken into account after the fact - in the time sheet. The amount of processing is indicated separately for each day, on a separate line. The letter designation is "C", the digital designation is "04".

Time worked overtime on weekdays and turnout on weekends are recorded separately.

The law does not require that you keep a log of overtime work (a time sheet is enough). But for the convenience of the personnel officer and in order to prevent overworking in excess of the maximum norms established by law, it is advisable to maintain such a journal.

It is important not to allow more than 120 hours of annual processing for each employee

Compliance with the rule of 4 hours for two days in a row is conveniently controlled by orders (check - by timesheets). But to take into account the limiting 120 annual hours, one cannot do without a journal.

Payment for overtime hours worked occurs on the company's pay days (together with the salary).

Employer's liability and jurisprudence

There are no special rules on the liability of the employer for violating the law in the field of involving employees in overtime work. Nevertheless, the sphere of relations is quite responsible - there are certain clear limits that you just want to cross. The most common violations are related to:

incorrect determination of the reasons requiring processing, which entails a violation of the procedure for processing work;
violation of the procedure for attracting employees (or its absence at all);
mixing the concepts of "non-standard work" and "overtime employment";
violation of the rights of privileged categories;
exceeding the limits for involving employees in processing;
improper processing compensation.

Responsibility upon detection of these violations occurs under the general article of the Code of Administrative Offenses of the Russian Federation - 5.27 (“Violation of labor legislation”). At the request of an employee, the prosecutor's office, and more often the labor inspectorate, can attract to it.

An employee who worked as a cashier, in court, demanded to recover from the employer an additional payment for overtime work. She pointed out that the employer did not keep records of working time, and did not pay overtime. The time sheet provided by the employer, in her opinion, did not correspond to reality. She kept her own time sheet, in which every day she recorded the data that was available to her to confirm the correctness of the document: the serial number of the control meter at the end of the working day, the readings of the summing cash meter at the beginning and end of the working day, the income for the working day by the meter. The court of first instance denied the worker's claim, but the appellate instance reversed this decision and adopted a new decision on the case, which satisfied the claim. The lower court, refusing to satisfy the demands of the employee, proceeded from the fact that she performed overtime work on her own initiative. There was no initiative of the employer to involve the employee in overtime work. The Court of Appeal did not agree with this conclusion, referring to the cashier's certificates and reports. In addition, it was taken into account that the employer, having paid the employee an increased salary, thereby recognized the fact of overtime work.

Appeal ruling of the Volgograd Regional Court dated June 1, 2012 No. 33–4789/2012

In different ways, the courts approach the partial registration of overtime work (if only a time sheet is present). The claims of employees in such a situation are not always satisfied - both the correctness of the time sheet and the proof of the employer's intentions can play a decisive role.

The employee filed a lawsuit to recover from the employer extra pay for overtime work. As evidence, a time sheet compiled by him was presented. The courts of first and appellate instances upheld the claims of the worker. In support of their positions, the courts referred to the employee's job description, from which it followed that it was he who kept track of working time. The employer's reference to the absence of orders to involve the employee in overtime work was rejected. At the same time, the court took into account the employee's explanations that overtime work was carried out by him on the oral orders of the head of the organization, which at the end of the month were drawn up in writing in the appropriate way, that is, with the same time sheet.

Appeal ruling of the Kirov Regional Court dated January 19, 2012 No. 33-164

There are in judicial practice and the results of consideration of disputes about payment (in particular, during processing within the framework of the summarized accounting of working hours).

The employee applied to the Supreme Court of the Russian Federation with a statement in which he asked to invalidate clause 5.5 of the Recommendations on the use of flexible working hours at enterprises and organizations in the sectors of the national economy, approved by a joint resolution of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions dated May 30, 1985 No. 162 and No. 2 hours on average for each working day of the accounting period, for the remaining hours - double. The lower authorities refused him this. According to the Supreme Court of the Russian Federation, based on the meaning of Art. 152 of the Labor Code of the Russian Federation, work continued after the first 2 hours is paid double. processing during the working day (shift), and not the accounting period. The normal number of working hours for the accounting period, as follows from Part 2 of Art. 104 of the Labor Code of the Russian Federation, is determined depending on the duration of daily or weekly working hours established for this category of workers. Since with the summarized accounting of working time it is impossible to observe the length of working time during the day (shift) or week, then, accordingly, it is impossible to establish the duration of daily processing and determine the number of hours, of which 2 hours are payable at one and a half times, and the remaining hours - at double the rate. The law, having established the procedure for payment for processing in excess of the length of the working day (shift) established for this category of workers, does not determine the mechanism for paying for the processing of the normal number of working hours for the accounting period with a summarized accounting of working time. Therefore, by virtue of Part 1 of Art. 423 of the Labor Code of the Russian Federation Recommendations continue to be valid.
Olga Burachonok
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According to Article 99 of the Labor Code of the Russian Federation, overtime work is considered to be labor activity in which the employer engages an employee to perform his duties for a period of time exceeding the working hours established according to the schedule.

If an employee of the company has unlimited work periods under an employment contract, and the employee himself periodically remains at his workplace after the end of the working day or starts working earlier than his colleagues, then these delay periods will not apply to overtime work.

At the present time, the legislation of the Russian Federation states that employees can be involved in work, the time of which exceeds the established limit, both in the event of an emergency (accident, technical work, accident, etc.), and in other circumstances requiring the adoption of such measures.

What is overtime?

Involvement in additional working hours of an employee should be carried out only if he gives his consent in writing. The employer must take into account the position of the elected member of the primary trade union.

Article 99 of the Labor Code of the Russian Federation indicates cases when a person should be involved in additional work activities only if his consent is expressed in writing:

if it becomes necessary to complete a work activity that has already begun, which, due to a sudden delay related to technical production conditions, could not be completed on schedule.

Additional hours are given only if the non-completion of work activities can cause damage to the property of the enterprise (this property includes the property of the employer and property transferred to the organization for temporary use, for which the employer is responsible), which was received from an organization of a state or municipal type, or lead to a threat to people's life;

during temporary work activities related to the repair / restoration of mechanical devices or structures, when the malfunction of these objects can lead to the completion of work activities for a large number of employees;
in order to continue work in case of non-appearance of the employee in the shift determined for him, if labor activity cannot be interrupted. In this scenario, the main responsibility of the employer becomes the search for an employee who can act as a shift.

Some employees, in order to be involved in overtime employment, must, in addition to concluding a written contract, obtain a medical certificate that will indicate the employee's suitability for additional work duties.

The issuance of a health opinion is carried out in accordance with the decree of the Ministry of Health and Social Development of the Russian Federation dated February 2, 2012 under the number 441n. This category of employees includes:

People with disabilities;
Female representatives who have small children (age group - up to 3 years).

When establishing a full (summated) accounting of hours of work, the employer must specify the accounting period in the rules of the working schedule. This must be done in order to correctly calculate the hours that the employee works overtime.

Also, the norm established for the accounting period should be equal to the norm that is established for a specific category of employees (should not exceed forty hours per week).

Who is not eligible for overtime activities?

Not everyone can work overtime.

The following categories of workers cannot be involved in additional labor activity:

Women in position;
Employees who have not reached the age of eighteen. True, there are exceptions, and this applies mainly to media workers involved in creative activities, cinematographic organizational structures, video and television filming teams, entertainment organizations, as well as other persons who create and exhibit cultural works. This rule is taken into account by the Government of the Russian Federation and is fixed by the approval of the 3-sided commission of the Russian Federation responsible for regulating social and labor relations;
Employees of the company during the functioning of student contractual obligations;
Other categories of citizens in accordance with the norms of the Labor Code and other legislative acts in force at the federal level.

In addition, article number 99 of the Labor Code of the Russian Federation provides for situations where an employee of a firm or enterprise can be recruited by an employer without mandatory consent:

during the performance of work activities, the need for which arises when it is necessary to prevent a catastrophe, an emergency at work or eliminate the negative consequences caused by a technical failure or natural disaster;
during the period of implementation of socially important works aimed at eliminating circumstances that disrupt the stable operation of centralized water supply systems, gas supply systems, power plants, as well as transport structures;
during the implementation of work activities, due to the need to introduce an emergency or emergency, or the urgency of carrying out work in critical conditions. This applies mainly to catastrophic consequences, which include fires and earthquakes. The rule also applies to other situations that can endanger the lives of citizens.

It must be said that the time for which the performance of additional work activities is allotted cannot exceed 4 hours for an employee in a period of 2 days and 120 hours per year.

The employer in such a situation must necessarily ensure the correct accounting of the duration of overtime work for each individual employee.

The work schedule sheet represents the time that was worked overtime in the form of the letter "C" or a numeric coding.

If employees do not have normal working hours, then they will not be paid for work that was performed overtime. Instead, the additional working period worked out will be compensated by vacation.

How is overtime paid?

The pay is higher than for regular work.

The rules for paying for work performed overtime are prescribed in article one hundred and fifty-two of the Labor Code of the Russian Federation. This article states that payment for additional labor activity should be carried out:

For the first 2 working hours - in the amount of one and a half cost;
For further time - in the double size.

The amount of wages paid for the performance of additional work activities can be established both by collective agreement, and by local regulatory law or an employment contract.

Also, the employee, on his own initiative, may demand that overtime work activities be rewarded not with a higher salary, but with additional days off. At the same time, the rest time should not exceed the period for which overtime work was done.

There is also a small nuance in the document, which is associated with an additional payment for overtime work duties with full accounting for hours worked. Members of the Ministry of Health and Social Development present the following position: in the case of full accounting of the time for which the labor activity was carried out, additional payments will be made after the end of the accounting period.

However, the official documents of the Armed Forces of the Russian Federation indicate that such a provision contradicts paragraph 5.5. This paragraph states that the use of regimes that establish a flexible work schedule at various enterprises and structural organizations is possible only in full compliance with the decision of the State Labor Committee.

It states that when overtime work is carried out by employees performing their labor duties in a flexible schedule, hourly accounting of this activity is carried out in total form in full accordance with the fixed accounting period.

This means that overtime is the working time that was worked in excess of the norm accepted for this stage.

Payments are made in accordance with the rules of current legislation.

For example, if an employee worked overtime for about thirty hours (two weeks of the specified period), then he will be paid in the initial amount for twenty-eight hours, the remaining two hours will be paid at a double rate.

Calculation of wages for overtime work

An example of calculating overtime pay.

To understand how the salary is calculated for an employee who performs overtime work, you can pay attention to an example.

The employee of the institution is assigned a full account of the time during which he performs his labor activity. The reference period is one month, and the shift time is twelve hours.

This employee has an hourly salary, the amount of which is 180 rubles per hour. In the last month of the summer, he worked fourteen shifts, which corresponds to 168 hours, which is the standard duration of work.

Also in August, due to some circumstances at work, this employee had to perform additional labor duties. The period of overtime work was 2 hours per shift, and there were 3 such shifts in total.

Overtime work carried out at the enterprise must be paid in accordance with Article 152 of the Labor Code of the Russian Federation. Now we need to calculate the payroll.

Since the employee worked according to the overtime plan for 2 hours per full shift, and the total number of shifts was three times / month, then in the end the time spent on overtime work will be 6 hours (two hours are multiplied by three. So, the additional payment for overtime activities will total 1620 rubles.

The procedure for calculating the hourly tariff scheme from a fixed rate for a month is determined by a letter from the Ministry of Health dated July 2, 2014.

It talks about how the hourly discount rate is calculated in order to calculate the amount of additional payment for overtime work by employees of medical institutions who work in accordance with the schedule (during a twelve-month period on certain days there is an opportunity for underworking or processing from the established norm according to the production sample calendar), and also whether it is legal that the average annual price of 1 hour is taken into account when calculating the hourly payment.

Thus, the Ministry of Health found that Article 152 of the Labor Code of the Russian Federation does not define the procedure for establishing the minimum wage for overtime work.

The officials found that when paying for overtime work, the rules of Article 153 of the Labor Code of the Russian Federation can be put into practice.

This article indicates that the minimum payment in double amount should constitute a double tariff plan, which will not take into account incentive or compensatory cash payments.

Summing up the above, it must be said that Article 152 of the Labor Code of the Russian Federation provides complete information related to the amount of wages for overtime work. The organization in its own regulatory constituent acts has the right to establish a different amount of wages.

True, this size should not be lower than the minimum provided for in the Labor Code of the Russian Federation. You also need to remember that the additional payment for overtime work is part of the salary of an employee of the company, which means that it is also taxed by insurance companies.

This video will show you how to pay for overtime.

Question form, write your

Many institutions in the course of their activities from time to time need to involve their employees in overtime work. In this article, we recall how to properly involve employees in such work, which of the employees it is contraindicated, and also tell you how to pay for overtime work, taking into account the latest clarifications from the specialists of the Ministry of Health (Letter dated 02.07.2014 No. 16-4 / 2059436 "On remuneration for overtime work").

Recall that according to Art. 99 Labor Code of the Russian Federation overtime work is work performed by an employee at the initiative of the employer outside the length of working time established for the employee - daily work (shift), and in the case of summarized accounting of working time - in excess of the normal number of working hours for the accounting period.

The nuances of attracting employees to work overtime

The employer must remember that involvement in overtime work is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization. So in Art. 99 Labor Code of the Russian Federation provided cases in which it is necessary to obtain the written consent of the employee to involve him in overtime work :

if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if the failure to perform (non-completion) of this work may lead to damage or destruction of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or create a threat to the life and health of people;
when performing temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause a significant number of employees to stop working;
to continue work if the replacement employee does not appear, if the work does not allow a break. In this case, the employer is obliged to immediately take measures to replace the shift with another employee.

In order to involve certain categories of employees in overtime work, in addition to their written consent, it is necessary to obtain a medical certificate that such work is not forbidden to them for health reasons. This medical certificate is issued in accordance with Order of the Ministry of Health and Social Development of the Russian Federation of 02.05.2012 No. 441n "On approval of the procedure for issuing certificates and medical reports by medical organizations". These workers include:

disabled people;
women with children under the age of three.

note

Disabled persons and women with children under the age of three must be informed of their right to refuse to work overtime against their signature.

We draw your attention to categories of citizens who cannot be involved in overtime work . This:

pregnant women;
employees under the age of 18, with the exception of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. This list has been approved Decree of the Government of the Russian Federation of April 28, 2007 No. 252 ;
employees during the period of the apprenticeship contract ( Part 3 Art. 203 of the Labor Code of the Russian Federation);
other categories of employees in accordance with the Labor Code and other federal laws.

Besides, Art. 99 Labor Code of the Russian Federation provided cases when the employer's involvement of an employee in overtime work is allowed without his consent :

when carrying out work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
when performing socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems;
when carrying out work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (in the event of a fire, flood, famine, earthquake, epidemic or epizootic) and other cases that endanger the life or normal living conditions of the entire population or part of it.

In conclusion of this section of the article, we note that the duration of overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year. At the same time, the employer is obliged to ensure an accurate record of the duration of overtime work of each employee. In the timesheet (form T-12 or T-13), overtime hours are indicated by the letter code "C" or the digital code "04".

Employees with irregular working hours are not paid hours worked in excess of the normal working hours, as they are compensated by additional leave ( Letter of Rostrud dated 06/07/2008 No. 1316-6-1 ).

The nuances of overtime pay

The procedure for paying overtime is established Art. 152 Labor Code of the Russian Federation. This article provides that overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least twice the amount. At the same time, the specific amounts of payment for overtime work may be determined by a collective agreement, a local regulatory act or an employment contract.

In addition, as stated in this article, at the request of the employee, overtime work instead of increased pay can be compensated by providing him with additional rest time, but not less than the time worked overtime.

We draw your attention to one nuance related to the additional payment for overtime work with the summed accounting of working time. The position of employees of the Ministry of Health and Social Development, presented in Letterdated 31.08.2009 No. 22-2-3363 , is as follows: with the summarized accounting of working time, additional payment for overtime work is made at the end of the accounting period.

However, in Decision of the Armed Forces of the Russian Federation of October 15, 2012 No. AKPI12-1068 it is recognized that such a provision is contrary to clause 5.5 of the Recommendations on the use of flexible working time regimes at enterprises, institutions and organizations of the sectors of the national economy, approved Decree of the USSR State Committee for Labor No. 162, All-Union Central Council of Trade Unions No. 12-55 from 05/30/1985, according to which, in the case of overtime work by persons transferred to the flexible working time regime, hourly accounting of these works is kept in total in relation to the established accounting period (week, month), that is, only hours worked in excess of the norm of working time established for this period are considered overtime. Their payment is made in accordance with the current legislation: in one and a half size - for the first two hours falling on average on each working day of the accounting period, in double size - for the remaining hours of overtime work. Thus, if an employee, for example, worked overtime for 30 hours (14 working days of the accounting period), he will be paid 28 hours (14 days x 2) in one and a half times, and two hours - in double the amount.

Let us give an example of calculating wages for overtime work for an employee who has an hourly wage, taking into account the decision of the Supreme Court of the Russian Federation.

Example.

An employee of the institution has a summarized record of working time. The accounting period is a month, the duration of the work shift is 12 hours. This employee has an hourly wage of 180 rubles per hour. In August, he worked 14 shifts, which corresponds to

168 hours - normal working hours according to the production calendar for August 2014. In addition, in the same month, due to production needs, he was involved in overtime work for two hours per shift, there were three such shifts in total. Overtime work in the institution is paid in accordance with Art. 152 of the Labor Code of the Russian Federation. We will calculate the payment for such work.

Due to the fact that the employee was involved in overtime work for two hours per shift, and there were three such shifts in a month, the total number of overtime hours will be 6 hours (2 hours x 3). Thus, the additional payment for overtime work will be 1,620 rubles. (180 rubles per hour x 6 hours x 1.5).

As for the procedure for calculating the hourly tariff rate from the established monthly rate, we would like to draw your attention to the explanations of the employees of the Ministry of Health, given in Letter No. 02.07.2014 16-4/2059436 . In it, they provide answers to the following questions: how is the hourly rate calculated to calculate the additional payment for overtime work for medical workers working according to the schedule (during the year, in some months, processing or underworking from the norm of working hours according to the production calendar is possible), is it legal to use the average annual cost of one hour when calculating the payment for hours of processing?

Thus, the Ministry of Health noted that Art. 152 Labor Code of the Russian Federation does not establish the procedure for determining the minimum one and a half and double overtime pay. In his opinion, when paying overtime, you can use the rules Art. 153 of the Labor Code of the Russian Federation, according to which the minimum amount of double payment is a double tariff, excluding compensation and incentive payments.

In addition, the officials pointed out that the specific amount of overtime pay may be determined by a collective agreement, a local regulation or an employment contract. One and a half and double payments may include all allowances and surcharges established in the organization or part of them.

The letter also noted that the current legislation does not provide for the procedure for calculating the hourly tariff rate from the established monthly rate in order to pay for overtime work. Thus, according to the employees of the Ministry of Health, it is advisable to calculate the hourly tariff rate by dividing the salary set for the employee by the average monthly number of working hours, depending on the established length of the working week in hours. This means that the average monthly working hours (for example, with a 36-hour working week) is calculated by dividing the annual norm of working hours in hours by 12. Thus, in 2014, the average monthly working hours with a 36-hour working week will be 147.7 hours (1,772.4 hours / 12).

The Ministry of Health argues this approach to determining the average monthly number of working hours by the fact that such a procedure for calculating the part of the salary per hour of work to pay for overtime work (at night or non-working holidays) allows you to receive the same pay for an equal number of hours worked in different months.

Such a procedure for calculating the hourly wage rate from the established monthly salary must be fixed in a collective agreement, agreement or local regulatory act.

Let's give an example of calculating wages for overtime work for an employee who has a salary.

The doctor has a total record of working time. The accounting period is a month, the duration of the work shift is 12 hours. His salary per month is 18,000 rubles. In August, the doctor worked 13 shifts, which is 156 hours. We calculate the payment for overtime work, provided that such work in an institution is paid for the first two hours at a rate of one and a half, and for subsequent hours - at a double rate.

According to the production calendar for 2014, with a 36-hour work week in August 2014, the normal working time is 151.2 hours. The doctor this month worked 13 shifts of 12 hours, which amounted to 156 hours per month. This means that he worked 4.8 hours of overtime (156 - 151.2). In 2014, the average monthly number of working hours with a 36-hour working week will be 147.7 hours (1,772.4 hours / 12).

Consequently, the hourly part of the employee's salary will be 121.87 rubles. (18,000 rubles / 147.7 hours). Thus, overtime payment will be equal to 1,048.08 rubles. ((121.87 rubles x 2 hours x 1.5) + (121.87 rubles x 2.8 hours x 2)).

In conclusion, we note that Art. 152 Labor Code of the Russian Federation established minimum wages for overtime work. The institution in its local regulatory act may establish other amounts of payment for such work, but not lower than those provided for by the Labor Code. In addition, the institution may establish in a local regulatory act the procedure for calculating the hourly tariff rate from the established monthly salary in order to pay for overtime work, since this is not provided for by current legislation. We also recall that the extra payment for overtime work is part of the employee’s salary, therefore, it is subject to personal income tax and insurance premiums to off-budget funds ( paragraph 1 of Art. 210 Tax Code of the Russian Federation, Part 1 Art. 7 Law No. 212-FZ).