Duration of overtime work. What is considered “overtime” and how to pay overtime

Almost all citizens are familiar with the concept of recycling. Working in excess of the norm established by the employer, or more than the number of hours prescribed by law, should not pass without a trace, as if this is how it should be. This article will discuss in detail what is considered overtime and how much the employer must pay you for it, as well as provide links to the relevant laws in the labor code.

What exactly is considered recycling?

There is a legal norm for the average working person, and it is forty hours a week, in other words 160 hours a month. The reference to this norm is Article 91 of the Labor Code Russian Federation.

It turns out that having two days off a week, you must work eight hours a day, not taking into account the mandatory hour break. If your employer obliges you to work beyond the established norm described above, then this time spent at the workplace will be called overtime.

When you are left to do additional work, try to find out right away whether there will be compensation for it, as the law says. Don’t be lazy to re-read your employment contract; often there lies the reason why you are not compensated for your overtime hours.

If you did not find such a clause in your employment contract, then read the next clause about how exactly you should be compensated for the extra time at work.

How is overtime paid according to the labor code?

The answer to the question is Article 152 of the Labor Code of the Russian Federation: Overtime work should not exceed four hours for two consecutive days or 120 hours per year. The employer is obliged to ensure accurate recording of the duration overtime for each employee.

In addition, the same article states that the first two hours of overtime are paid at a rate of one and a half size, and subsequent ones - in double.

For workers with a shift schedule, things are a little different. If this is your work schedule, then pay attention to Article 111 of the Labor Code. This article regulates the concept of a shift schedule; in this case, overtime is considered only that day that was not initially in your schedule and is paid from no less than double your usual amount wages.

In addition to the above points, remember that working overtime is only permissible with the written consent of the employee, that is, you.

People working on a piece-rate system require special attention. If you produce during overtime, fifty percent of your regular rate must be added for the first hour, and one hundred percent for all subsequent hours of work.

Of course, every time you are asked to stay overtime, don’t be afraid to look at your employment contract with your employer and re-read the overtime clause, if there is one. Any employer undertakes to pay you these hours at special rates prescribed in the Labor Code of the Russian Federation.

The Labor Code in the Russian Federation is designed to protect the interests of all employees in the country.

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Therefore, first of all, you should refer to this document if questions arise about how overtime is paid under the Labor Code in the Russian Federation in 2019.

Only this regulatory legal act will contain basic information regarding remuneration for all types of work performed.

In this case, it is necessary to take into account a number of features that may accompany these calculations. After all, accounting has its own nuances that require constant monitoring - and they mainly relate to legislation.

What you need to know

In 2019, amendments were made to the Labor Code in the field of processing. In order to calculate the amount of additional payment that the employer will make, you need to decide what overtime means.

This phenomenon appears in the following cases:

the employee lacks the competence to carry out work at the required time;
the employee does not know how to plan the flow of work and, as a result, does not have time to complete everything on time;
a request or requirement from an employer to take on more work.

It is in such cases that there is a need to make additional payments for overtime spent in the office and at the workplace.

It is worth noting that you need to know how overtime is paid under the Labor Code and the formula for this procedure is standard.

Important Concepts

Employer	Is this a citizen or entity which provides another to an individual workplace and officially employs him in his company. For example, to protect property
Recycling	This is spending more time at the workplace than specified in the country's legislation. In Russia this time is eight hours
Labor Code of the Russian Federation	This is a legislative document that regulates all relationships occurring in the sphere of labor in the country.
Wage	This is the amount of monetary incentives for a citizen who carries out any type of work. Typically this payment is made monthly
Compensation	This is a payment that is made to citizens to compensate for any losses. In this case, it will be payment for overtime work
Employment contract	This is a document that is concluded between an employer and a citizen to carry out work activities. It is this document that will establish the rights of the worker, in particular, the duration of the working day.

What duration is possible

Working time is the period of time during which a citizen is at his workplace and carries out labor activities.

This includes breaks and possible travel costs, such as travel to work and home. But such a condition can be specified in the contract with the employer and the law does not require it.

First of all, it is worth understanding that there is a concept of a maximum number of hours of work per week. In Russia, this figure is at the level of 40 hours per week. All hours not included in this figure should be considered overtime.

It must be taken into account that for different categories citizens have their own working hours with a maximum indicator:

Who cannot be involved in overtime work

These include:

pregnant women;
minor workers - until they turn 18 years old.

This includes other citizens, in accordance with regulatory documents local authorities.

The employer must obtain written consent for an extra-standard working day from the following employees:

disabled people of all groups;
women raising children under three years of age.

Categories of citizens may refuse to perform such work. Plus, it is impossible to attract them to work in the case when they are on sick leave or their health condition does not allow them to work beyond the norm. In this case, the supporting document will be a certificate from a medical institution.

Legal grounds

In terms of legislation, holding an extra-standard working day is consistent with the Labor Code of the Russian Federation. Overtime work is directly discussed in Article 99 of this code.

In the article you can find information about in what cases there may be a need to spend additional time at the workplace and which people can be involved in work and which cannot.

But it is also important to familiarize yourself with the provisions on working time in general. Information about this is established in Chapter 16. In Article 100 you can find information about what number of hours is optimal for working in Russia.

Next, you should refer to Article 152. It contains provisions on how remuneration for overtime work should be carried out. In accordance with the instructions, payment calculations are carried out in all enterprises of the country.

Key Aspects

When asking an employee to spend a longer period of time at work, the employer must understand that it is best to document this working relationship.

Since, in addition to the voluntary nature of spending additional time at the workplace, a citizen must be confident in being paid at increased rates.

In any case, it is necessary to notify the employee that he will need to stay late at work. At the same time, some categories of citizens may refuse additional hours of work.

If processing is the initiative of the employee himself, then payment for it will not be made and it will not be taken into account in the documentation. Only the initiative of the enterprise management is paid and taken into account.

How does documentation work?

An obligatory point in attracting a citizen to work additional time is to document all hours.

The main document in this plan will be the employee’s written consent to carry out additional work. This document obliges the employer to draw up the Labor Code of the Russian Federation.

The procedure will be carried out according to the following algorithm:

the exact amount of processing is established;
an order is issued to involve the employee in overtime work;
The citizen’s consent to spend additional hours at the workplace is attached to the order.

Is the employee's consent required?

A mandatory point both in organizing the processing process and in its documentation is the consent of the employee to carry out such work.

The Labor Inspectorate takes these documents seriously. Therefore, it is worth paying attention to these features.

It is best to obtain consent to work from the employee. This provides an evidence base and allows you to organize the company’s documentation.

How overtime is paid under the Labor Code in 2019

Payment for additional hours of work can be carried out at different rates - it all depends on the duration of the overtime.

For the first two hours, the tariff should be increased by 1.5 times, and for all other hours you will need to pay at double the tariff.

Additional payment may be replaced by a day off. And the time spent must be compensated in full in accordance with the processing.

With a shift schedule

In this case, payroll calculation options should be taken into account:

Kindergarten

Here you should follow the standard rules. For the first two hours you will be charged one and a half times the rate, and for all the rest - at double the rate.

At the same time, you need to understand that the main document will be the employment contract with the employee.

If it indicates the provision of a day off for overtime, then there will be no additional payments. But it will be possible to add “earned days” to your vacation.

Business trip

When an employee is sent on a business trip, he must be paid travel allowances. During this shipment, the need for overtime or night work arose, the employer is obliged to pay compensation for the time spent.

It is worth noting that he will carry it out in accordance with standard standards. Thus, you can count on:

paid day off;
accrual of additional payments in the amount of 1.5 to 2 points to the tariff.

But here it is worth considering under what agreement the employer and employee cooperate. Because in the case of irregular working hours, as specified in this document, payments for night work or additional hours of labor will not be paid.

Medicine

In this case, you should first of all take into account the length of the working day specified in the contract. Since the legislation provides for the possibility of reducing indicators for medical workers.

Therefore, they can qualify for additional pay even if they work less than 40 hours a week. The accruals themselves will be carried out according to standard parameters.

Features of payments on holidays and weekends (example)

The employer is obliged to pay for work on a weekend or non-working holiday at a double rate. This norm is established by law and must be observed.

Those employees who may receive such payments include:

Piece workers - payment is made at double rates;
employees with daily and hourly rates are also doubled;
employees who receive wages as a salary will have to receive compensation at a single daily or hourly rate in the case when the number of hours in the month was normal; if the indicators are exceeded, payment is made at a double rate.

What you need to pay special attention to

Many issues in this area are regulated by production regulations and local acts and the employment contract itself.

And the employer can establish both payment on weekends and at an increased rate. Therefore, first of all, you should refer to these documents.

They allow you to quickly and accurately determine what amount of additional payment is due. At the same time, it is worth taking into account legislative norms, which are the minimum threshold for payment.

Working overtime is considered one of the options that allows you to earn extra money and earn additional income. Sometimes bosses offer to stay at work after hours in order to complete a previously assigned task. Many agree with pleasure, knowing that this will bring them a possible additional payment. The employer does not have the right to abuse such offers according to the Labor Code of the Russian Federation, violation of which is accompanied by financial penalties in the form of fines imposed on the enterprise.

The Labor Code of the Russian Federation is aimed at protecting workers' rights. It includes articles that regulate work beyond normal hours and prohibit employers from applying increased loads to their employees, which allows them to maintain their health.

The Labor Code of the Russian Federation has a separate chapter devoted to determining working time standards. Article 91 of the Labor Code of the Russian Federation states that with the usual organization of working time, the amount of hours worked cannot be more than 40 with a 5 or 6 day work week. If an employee has exceeded the time standard established in labor legislation, then all overtime hours are paid.

It is noted that overtime is work in which an employee is used by superiors in excess of the statutory hours approved by law. The initiative for such a presence in the workplace must necessarily come from management and have good reasons. Employees can be used for overtime work only when the consent of each of them has been obtained in writing. It is also necessary to have the approval of the trade union body of the enterprise.

The grounds on which it is possible to withdraw workers beyond standard hours may be as follows:

The completed task must be completed within certain strictly established deadlines, failure to comply with which may result in loss or damage to the employer’s property and property.
If a break in work can lead to the creation of situations that pose a threat to health or even death, then there is a need to continue the previous actions taken. Previously planned activities were disrupted due to unforeseen circumstances and technical reasons.
Carrying out repairs and restoration of a building or equipment, which may subsequently lead to downtime for a significant number of employees.
If production is continuous and a shift worker does not show up, the employer may ask the employee to stay at work for a while. Management does not have the right to leave him on the full 2nd shift. Arrangements must be made to find an alternative solution.

There may be circumstances in which hiring employees to work overtime does not require their consent:

In the event of accidents or disasters at work to eliminate their consequences.
Employees of such areas that are vital for large quantity population, when the normal existence of people is disrupted: water supply, gas supply, electricity supply, heating, transport, communications.
In the event of emergencies, military situations or disasters associated with natural disasters, as well as fires, famine or epidemics.

Video - Overtime payment for summarized working hours

Who is prohibited from engaging in overtime work?

pregnant women;
minor citizens;
workers with harmful conditions labor;
disabled people of groups 1 and 2;
women who have children under 3 years of age.

The last two categories, if necessary, can be withdrawn during additional hours, but they must sign 2 documents. The first is their consent to processing, and the second is that they have every right to reject such an offer.

Time standards for different categories of workers

Any enterprise maintains standardized records of the time worked by each employee. Overtime is usually calculated by comparing the number of planned hours for a certain period and the hours that were actually worked. Usually a month is accepted for calculations, but a quarter or even a year is possible.

For minors under 16 years old - a 24-hour week, from 16 to 18 years old - a 35-hour week.
At special conditions labor associated with danger and harmful to health, a 30 or 36-hour week is approved.
For all other employees, the week is set at 40 hours.

Temporary restrictions on overtime hours

Legislatively defined restrictions on the use of workers overtime. The employer has the right to involve an employee in additional work for no more than 4 hours. Moreover, this should not happen more than 2 days in a row.

Every year the government of the country approves production calendar, which sets standard hours for all categories of workers. The management of the enterprise must ensure that employees working shifts do not overwork more than 120 hours per year. If such a situation occurs, penalties will be imposed on the organization. According to Article 5.27 of the Administrative Code, for each violation, an official will be punished from 1,000 to 5,000 rubles, and an enterprise - from 30,000 to 50,000 rubles. It is possible to suspend the organization's activities for up to 90 days.

Important! In case of violations by the employer, an employee who has overtime exceeded 120 hours must receive full compensation for it.

Registration of overtime

There is no strictly established form for recording overtime hours. Recommended following methods processing registration:

The written notice contains information about the reason for additional work, indicating the date and time during which the employee must perform it. This document is handed to the employee, which he signs, expressing his consent.
If several employees are being withdrawn, then it is wiser to draw up an order requiring them to work overtime. It specifies the basis for overtime, the date and time for each employee. There is a special column where a consent signature is placed.
Overtime must be noted in the timesheet in the form of a special designation “C” with the establishment of the number of overtime hours. Usually for reference time sheet forms approved by Rosstat or are used.

Important! An employer can protect itself from overtime-related issues. To do this, it is necessary to stipulate in the employment agreement a provision regarding irregular working hours. By law, under this regime, no overtime hours are accrued.

Payment for processing

The Labor Code contains information about the established minimum for payments provided for employees working overtime. Tariffs for processing are set differently at each enterprise. They are fixed in the collective agreement or in the contract concluded with the employee. Moreover, these prices should not be less than those guaranteed under the Labor Code.

According to Article 152 of the Labor Code of the Russian Federation, when working on weekdays, the first two hours of overtime are calculated at one and a half times the rate, the next hours are calculated at double pay. Article 153 establishes the amount of payment for going to work on weekends and holidays. In this case, prices always increase by at least 2 times. There is an alternative to payment. If the employee agrees, he can get a day off on any other day he wishes. The remaining payment will be charged in a single amount.

Calculation example

If an employee is called to extra work on Tuesday for 4 hours, then the next time you can attract him to such work no earlier than Thursday. Payment for 4 hours worked on Tuesday will be calculated as follows:

If a salaried specialist is called to work overtime, you first need to find out the cost of one hour. With a salary of 25,000 rubles and a 168-hour balance, one hour costs 148.80 rubles. The first 2 hours of overtime are paid in the amount of 148.80*1.5=223.20 rubles, the other 2 hours – 148.80*2=297.60 rubles. The amount of payment for processing will be 520.80 rubles.
If an employee has a piece rate, then the calculation of the cost of overtime hours is determined from his tariff rates. Calculations are made by analogy with the first method.
In shift mode with a quarterly accounting period, the calculation is carried out as follows. When closing the accounting period, the actual hours worked for 3 months are summed up and compared with the balance of working hours for the quarter. If the fact exceeds the normative balance, then this difference is processing.

The Labor Code of the Russian Federation determines the daily number of working hours. However, the employer is authorized to extend the working day if necessary. In this case, we are talking about recycling.

Remember that workers' rights must be respected at the legislative level. You can learn more about the basics of labor protection in the Russian Federation. Next, let’s look at the issue of processing.

According to the standards of the Labor Code of the Russian Federation, the daily working hours should not exceed (Article 94 of the Labor Code of the Russian Federation):

4-6 hours - for minors working during vacations;
2-4 – for citizens receiving secondary or higher education and those combining study and work;
8 hours with a 36-hour week for employees of enterprises with dangerous or harmful working conditions, with a 30-hour week – 6 hours;
12 – with a 36-hour week for employees of enterprises with moderate working conditions.

According to Article 97 of the law in question, overtime or overtime is the performance of work beyond the established schedule and norm. The initiator of processing is the management party.

Issues revealing the principles of introducing processing are regulated Article 99 of this code. According to the content of the article in question, in some cases an employee cannot be forced to perform overtime work against his will. The employee’s consent to overtime is recorded in writing and sealed with his personal signature.

The reasons for involving an employee in processing may be the following:

If there is an urgent need to complete important work that was previously started but not completed for production reasons;
During forced repairs of mechanisms and buildings, the failure of which may lead to a global suspension of the work process;
In case of non-appearance of the replacement employee, if the work is continuous.

By law, the employer is authorized to oblige an employee to perform overtime work without his written consent if the employee’s participation is required:

In operational actions to prevent a disaster and eliminate the danger of an emergency;
In order to eliminate disruptions in the supply of heat, hot and cold water, natural gas;
In cases of saving the lives of citizens under martial law or a state of emergency.

In all other cases forcing employees to recycle is unacceptable. Assigning overtime work on any basis is not legal in relation to pregnant women and minor employees.

Like other Federal laws, the current Labor Code of the Russian Federation regularly undergoes necessary amendments. Last changes in the provisions of this law regulating the nuances of processing, submitted June 19, 2017. The amending document was the Federal Law “On Amendments to the Labor Code of the Russian Federation”.

The introduced amendments to the Labor Code of the Russian Federation determine the rules for recording overtime work and additional hours. At the same time, it is clarified that the payment for processing should be increased.

At some enterprises (organizations) or for some positions (more often - management and accounting workers) constant processing, under which, for the purposes of this article, overtime work, work on weekends or holidays, that is, all work outside the normal working hours will be considered.

According to Art. 91 of the Labor Code of the Russian Federation, normal working hours cannot exceed 40 hours per week. Taking into account the provisions of other articles of Ch. 15 of the Labor Code of the Russian Federation, overtime in the above sense also arises if, by virtue of legislation or an employment contract, a reduced working time is established for the employee (for example, for a disabled person of group 2 in accordance with Article 91 of the Labor Code of the Russian Federation) or incomplete work time(for example, a pregnant woman at her request in accordance with Article 92 of the Labor Code of the Russian Federation), and in fact he works out the norm established by the above Art. 91 Labor Code of the Russian Federation.

In accordance with the provisions of Art. 97 of the Labor Code of the Russian Federation, the employer has the right, in the manner established by the Labor Code of the Russian Federation, to involve an employee in work beyond the working hours established for this employee in accordance with the Labor Code of the Russian Federation, others federal laws and other regulatory legal acts of the Russian Federation, collective agreements, agreements, local regulations, employment contract:

for overtime work (Article 99 of the Labor Code of the Russian Federation). We should not forget that for some categories of workers a complicated, limited procedure has been established for involving them in overtime work. So, according to Part 5 of Art. 99 of the Labor Code of the Russian Federation, the involvement of disabled people and women with children under three years of age in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons. At the same time, disabled people and women with children under three years of age must be informed, upon signature, of their right to refuse overtime work;
if the employee works on irregular working hours (Article 101 of the Labor Code of the Russian Federation).

Despite the fact that the Labor Code of the Russian Federation clearly and clearly sets out the procedure for attracting workers to these types of work, and the procedure for processing and paying for this work, in practice, controversial situations for the employer arise every now and then related to the use of overtime at their enterprise. Let's consider several practical situations from the point of view of their relevance and the potential risks they cause. Taking into account examples from practice, we will try to identify the employer’s mistakes (if they actually exist) when applying overtime, and we will also try to find acceptable measures to correct the situation before a dispute arises. When describing the situation, general data for the enterprise will be indicated (for example, “there is processing,” but without indicating exactly how many people are processing).

Situation 1: There is processing, but it is not recorded and not paid

Risks:

the emergence of a labor dispute between an employee and an employer with a requirement to pay for overtime;
establishment by the regulatory authority when checking the presence of processing, issuing an appropriate order and bringing to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor and labor protection legislation.

How to do it right

To apply for overtime work you must:

obtain written consent from employees for overtime work (only for the cases listed in Parts 2 and 4 of Article 99 of the Labor Code of the Russian Federation). This consent can also be obtained in the form of the employee’s signature on the order indicating “I agree to overtime work, date, signature”;
issue an order to engage in overtime work with an indication of the provision of compensation for this work;
familiarize the employees involved with the order against signature;
pay overtime work on time in accordance with the requirements of Art. 152 Labor Code of the Russian Federation. According to this standard, overtime work is paid as follows: for the first two hours of work not less than one and a half times the rate, for subsequent hours - not less than double the rate. Specific amounts of payment for overtime work may be determined by a collective agreement, local regulations or an employment contract. At the request of the employee, overtime work, instead of increased pay, can be compensated by providing additional rest time, but not less than the time worked overtime.

Note: The procedure for attracting employees to work on a weekend or holiday is similar to that described above and is regulated by Art. 113 of the Labor Code of the Russian Federation, and compensation is provided in the manner and amount provided for in Art. 153 Labor Code of the Russian Federation.

To establish irregular working hours:

adoption of a local act on the regime of irregular working hours, indicating the list of positions that can be involved in work in this regime (Article 101 of the Labor Code of the Russian Federation);
issuance of an order establishing irregular working hours for specific employees (by name);
an indication of this condition in the employment contract or the conclusion of an additional agreement to an already valid employment contract indicating compensation for work on irregular working hours. Usually - in the form of providing additional annual paid leave, the duration of which cannot be less than three calendar days (Article 119 of the Labor Code of the Russian Federation). But it is possible to provide (in addition to vacation) compensation in the form of increased pay, which is not prohibited by Art. 149 Labor Code of the Russian Federation.

Case Study

The employee filed a claim in court for overtime pay for the disputed period. The defendant employer insisted that overtime work, due to the interpretation of Art. 99 of the Labor Code of the Russian Federation, the employee did not have it. The court found that the employee was assigned a normal working time (40 hours per week), a summarized recording of working time with a quarterly accounting period; The plaintiff worked on a rotating schedule. The information on the amount of working time reflected in the schedule coincided with the information indicated in the working time sheet. However, during the course of the case, it was established that the enterprise additionally kept a specific journal for drivers, in which the drivers themselves reflected information about the work performed and the amount of time spent on it. The information provided was verified and accepted by an authorized representative of the employer. Based on information from the said journal, the fact of the plaintiff’s overtime was established. At the same time, rejecting the defendant’s arguments, the court pointed to the fact that this log is filled out and maintained by the driver himself, which does not indicate the unreliability of the information reflected in it. In addition, the court took into account that the defendant’s representative at the court hearing did not deny the fact that working hours are recorded using this journal, among other things. Taking into account these conclusions, the court recovered payment for overtime work from the defendant (ruling of the Perm Regional Court dated March 12, 2014 in case No. 33-2160/2014)).

Conclusion: Even if the employer “try” not to formalize overtime work in any way, when the dispute is considered in court, other evidence may “come to light” of the employee performing work on the instructions of the employer outside the established working hours.

Situation 2: Processing is available, registered, but not paid

Risks

The same as in situation 1.

How to do it right

Pay overtime in accordance with Art. 152 Labor Code of the Russian Federation.
Compensate for work on a weekend or holiday in accordance with Art. 153 Labor Code of the Russian Federation.
If a local act and an employment contract with an employee provide for increased pay for work on irregular working hours, pay the wages in the specified amount.

Case Study

The court ordered the employee to pay under-accrued wages, as it found that in fact during the disputed period the employee worked more than normal working hours. Meanwhile, during the dispute, the court found that the registration of overtime work was “half-hearted”: the duty schedule and the shift log reflected the employee’s increased working time compared to the norm, and the working time sheet recorded only the norm of working time in accordance with Art. 91 Labor Code of the Russian Federation. However, this did not prevent the court from making the indicated decision under such circumstances (appeal ruling of the Altai Regional Court dated February 19, 2014 in case No. 33-1364/2014)).

Conclusion:“half-hearted” registration of involving an employee in overtime and/or partial reflection of overtime in documents recording working hours does not guarantee that the employer can save on paying for overtime with impunity.

Situation 3: Processing is available, paid, but not processed (formed incorrectly, including in terms of payment calculation)

Risks:

issuance of an order by the supervisory authority to bring the documentation into compliance (unlikely, since the scope of inspection by these authorities lies in the area of identifying violations of the rights of workers, and not the procedure interior design personnel and accounting documentation);
the emergence of a tax dispute, since there are no documents confirming the company’s expenses for overtime work;
some confusion may arise, which will result in a dispute between the employer and the employee with a demand for the latter to return unreasonably (since there is no documentation of involvement in overtime work) the sums of money received as wages;
the risk of a labor dispute with an employee regarding the amount of accrued overtime pay.

How to do it right

Do not forget to document each case of involving employees in work beyond the established working hours in accordance with the requirements of the Labor Code of the Russian Federation (discussed above).
Correctly calculate overtime pay. Article 152 of the Labor Code of the Russian Federation establishes a uniform procedure for paying overtime hours. 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. In the case of using summarized recording of working time, based on the definition of overtime work, the calculation of overtime hours is carried out after the end of the accounting period. In this case, work in excess of the normal number of working hours during the accounting period is paid for the first two hours of work at least one and a half times the rate, and for all remaining hours at least double the rate.

Case Study

The employee filed a lawsuit to recover wages, indicating that he was incorrectly paid for overtime hours. During the consideration of the case, it was established that the calculation of payment for overtime work was carried out by the employer incorrectly: the calculation of payment for overtime hours was made for each day in which there was overtime. From the documents presented by the defendant it followed that the plaintiff was paid for 263.6 hours of overtime work in the following order: at time and a half - 163 hours, at double rate - 100.6 hours, 5 hours were paid at double rate as holidays. Meanwhile, the enterprise used summarized accounting of working time, in connection with which the employer should have started calculating overtime after the end of the accounting period and paid overtime hours in the amount of 263.6 hours as follows: the first 2 hours of overtime work of the plaintiff for the second half of the year - at one and a half times the rate , the remaining 261.6 hours are double. Thus, the court agreed with the plaintiff’s demands and decided to collect additional overtime payments from the employer according to the new calculation (decision of the Pechora City Court of the Komi Republic in case No. 2-1038/2012)).

Conclusion: even if the employer paid for overtime work, but incorrectly made the calculation (formulated it), under-accrued amounts may be recovered from him by decision of the labor dispute resolution body.

Situation 4: The processing has been formalized and paid in full, but it maximum size exceeded

Risk:

Holding the employer liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor and labor protection legislation, if the total number of overtime hours for one employee exceeds the amount established by Part 6 of Art. 99 Labor Code of the Russian Federation.

How to do it right

In accordance with Part 6 of Art. 99 of the Labor Code of the Russian Federation, the duration of overtime work should not exceed 4 hours for each employee for two days in a row and 120 hours per year. Since Part 7 of Art. 99 of the Labor Code of the Russian Federation, the obligation to keep records of working hours is assigned to the employer; it is he who will be found guilty of exceeding the maximum amount of overtime work.

Case Study

The employer was brought to administrative liability in the form of an administrative fine for the fact that, in violation of Part 6 of Art. 99 of the Labor Code of the Russian Federation, drivers of healthcare institutions were involved in overtime work of more than 120 hours per year. The employer appealed the decision to bring administrative liability to the court, but the court considered it established and proven that the chief physician of the healthcare institution was guilty of committing an administrative offense under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and the punished employer’s claim was denied (decision of the Birobidzhan City Court of the Jewish Autonomous Region dated March 21, 2011 in case No. 12-54/2011)).

Conclusion: It is important not only to properly formalize the involvement of an employee in work beyond the normal working hours established for him and to pay for such work at an increased rate, but also not to exceed the maximum amount of time for performing these works, established by Part 6 of Art. 99 Labor Code of the Russian Federation.

Situation 5: There is no overtime, the employee has an opposite opinion on this matter, but has not received any clarification on this matter

Risk:

The emergence of a labor dispute regarding the issue of payment for overtime work or the provision of other compensation for work outside the normal working hours established for the employee.

How to do it right

To eliminate the risk, it is recommended to explain to the employee the procedure for compensation for his work in increased volume with justification of calculations by normative and local acts. Confirmation of familiarization will be the employee’s signature on the sheet of familiarization with the employer’s local act. We should not forget that it is necessary to acquaint employees, upon signature, with the adopted local regulations directly related to their labor activity, is the employer’s obligation, stated in Part 2 of Art. 22 Labor Code of the Russian Federation.

Case Study

An employee of a healthcare institution filed a lawsuit to recover payment for overtime work and work on weekends. In the lawsuit, she explained that, by order of management, she went to work on her days off to draw up patient cards and other documentation. During her working hours, she received a larger volume of patients than expected, since instead of nine therapists, only five worked. Due to a lack of staff, all patients from other areas were distributed among working therapists, so her workload was increased, seven hours of daily work was not enough, but the employer did not pay for work outside of working hours at an increased rate and did not compensate for it in other ways. During the consideration of the case, the facts of a reduced number of employees in a health care institution and an increased workload on working therapists were confirmed. But at the same time, the court found that the employer used a team form of work for medical employees: all patients were distributed evenly, and an additional payment was made to the salary for the team method of work. There were no orders to attract workers to work beyond the established working hours; this fact coincided with the data in the schedule, timesheets, accounting documentation for payroll, journals and other evidence presented by the defendant in the case. Based on the foregoing, the court came to the conclusion that the plaintiff did not have overtime, that she was properly paid for her work under increased load as part of the team and, accordingly, did not find grounds to satisfy her claim (decision of the Aldan District Court of the Republic of Sakha (Yakutia) dated April 10, 2013 in case No. 2-441/2013)).

Conclusion: Increasing an employee’s workload does not always mean using his work beyond the normal working hours established for him; An employee going to work on his day off to complete documentation that was not completed during working hours, in the absence of orders to be hired to work on a day off, cannot be qualified as being hired to work on the initiative of the employer, but is regarded as the personal initiative of the employee.

conclusions

The law does not prohibit the employer from using overtime, that is, engaging workers beyond the normal working hours established for them (with the exception of certain categories of workers), but it requires the employer not only to properly register (“keep records of working hours” - Part 7 of Article 99 Labor Code of the Russian Federation), but also increased payment/provision of appropriate compensation (Articles 152, 153, 119 of the Labor Code of the Russian Federation).
Concealing overtime in the vast majority of cases results in labor disputes with employees demanding payment for overtime hours worked in accordance with labor laws.
Hidden processing can be revealed during an inspection by regulatory authorities of the employer’s compliance with the procedure labor legislation. in this case, the employer expects an order to eliminate the violation and, possibly, administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor and labor protection legislation.
Even correct registration and calculation of payment without the actual fact of payment Money creates the risk of the employee claiming these amounts. The employee may be denied collection of these amounts only if he misses the deadline for filing a lawsuit established by Art. 392 of the Labor Code of the Russian Federation, and statements from the employer on the application of the consequences of omission given period.
Correct design and full payment of overtime in accordance with the calculation made by the employer also do not guarantee the absence of labor disputes and decisions to refuse to satisfy the claims of plaintiff workers. On the contrary, during the consideration of the case it may well be revealed that the employer, through incorrect calculations, paid overtime work in a reduced amount.

In addition to these conclusions, it is also necessary not to forget about some important details when used at a processing plant. They were not discussed in this article, but it would be useful to recall them.

Memo

Some employees are prohibited from working overtime. These include pregnant women, workers under the age of eighteen (Part 5 of Article 99 of the Labor Code of the Russian Federation), as well as workers during the apprenticeship period (Article 203 of the Labor Code of the Russian Federation).
For some categories of workers, a complicated, limited procedure has been established for involving them in overtime work. So, according to Part 5 of Art. 99 of the Labor Code of the Russian Federation, the involvement of disabled people and women with children under three years of age in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons. At the same time, disabled people and women with children under three years of age must be informed of their right to refuse overtime work upon signature.
In disputes about payment for overtime, we should not forget about the possibility of the court and the State Labor Inspectorate imposing additional sanctions on the employer in the form of holding him liable under Art. 236 of the Labor Code of the Russian Federation for late payment of overtime.