Order for downtime due to the fault of the employer - sample and form. How is forced downtime due to the employer’s fault processed and paid? Notification of forced downtime due to the fault of the employer

Tatiana Gezha,
expert consultant at TLS-GROUP CJSC

Today there are often situations when, for one reason or another, organizations have to suspend their activities. What to do in this situation? What to do with employees? After all, it is impossible to send everyone on so-called “administrative” leave en masse. Transfer to part-time work (part-time work week) is possible only for reasons related to changes in organizational or technological working conditions. In this situation, in accordance with the law, it is only possible to introduce a downtime mode

Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (Part 2 of Article 72.2 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation)).

Although the Labor Code of the Russian Federation does not explain what is the reason of an economic nature, it can be assumed that a decrease in production volumes, services provided, and the number of sales is such a reason.

Regardless of external or internal factors leading to downtime, Art. 157 of the Labor Code of the Russian Federation distinguishes three types of downtime:

• downtime due to the fault of the employer;
• downtime for reasons beyond the control of the employer and employee;
• downtime due to the fault of the employee.

How to arrange a period of downtime

Since there are no standardized forms for registering downtime, the organization must develop actions and document flow in this case itself. For example, the algorithm of actions in this case may be as follows.

1. First, you must record in writing the fact of the downtime that has occurred.

You can draw up a written act or report about the reason that led to the downtime (Appendix 1).

2. Based on the report or act, the head of the organization issues an order to introduce downtime (Appendix 2). The order must indicate the start and end date of the downtime (if the end date is known at the time the order is issued), whose fault it arose, which employees will be placed on downtime, the procedure for working during the downtime, and the procedure for paying for the downtime.

We notify the employment service

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment of the Population in the Russian Federation” from January 1, 2009, when introducing part-time work or suspending production, employers are obliged to report this in writing to the employment service authorities within three working days after making decisions on carrying out appropriate activities.

There are no legally approved forms for this notification, so you can notify the employment service in any form (Appendix 3).

Liability for failure to provide notification is not specified in law. However, it can be assumed that the employer may be held administratively liable in accordance with Art. 19.7 of the Code of Administrative Offenses of the Russian Federation for failure to submit or untimely submission to a state body (official) of information (information), the submission of which is provided for by law and is necessary for this body (official) to carry out its legal activities in the form of a fine:

• for officials - from 300 to 500 rubles;
• for legal entities - from 3,000 to 5,000 rubles.

We prepare the time sheet

In accordance with the Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1, downtime is noted in the working time sheet:

• through the fault of the employer - letter code “RP”, digital code “31”;
• for reasons beyond the control of the employer and employee - letter code “NP”, digital code “32”;
• through the fault of the employee - letter code “VP”, digital code “33”.

Payment for downtime

• Due to the employer's fault
  In accordance with Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least two-thirds of the employee’s average salary. A collective or employment agreement in an organization may provide for higher payment for downtime. At the same time, to calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments (Article 139 of the Labor Code of the Russian Federation). The average salary is calculated in accordance with the Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating the average salary.”
  Payment for downtime caused by the employer will be calculated using the formula:
  (average daily earnings of an employee) x
  (2/3) x (number of working days of downtime).
• Due to the employee's fault
  Downtime caused by the employee (absenteeism, intentional damage to production equipment, improper operation of equipment, theft of materials, etc.) is not paid (Part 3 of Article 157 of the Labor Code of the Russian Federation).
• For reasons beyond the control of the employer and employee
  In accordance with Part 2 of Art. 157 of the Labor Code of the Russian Federation, downtime for reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime.
  Calculation of payment for downtime due to reasons beyond the control of the employer and employee will be made according to the formula:
  (monthly tariff rate (salary))/(number of working days in the month of downtime) x (2/3) x (number of working days in the downtime period).
  It is often difficult to understand whose fault the downtime occurred - the fault of the employer or for reasons beyond the control of the employer and employee. For example, it is a common position of the employer that downtime for economic reasons (financial crisis) is downtime for reasons beyond the control of the employer and employee.
  How to determine whose fault the downtime occurred?
  Let's say there is an equipment breakdown. If the employer did not periodically carry out scheduled technical inspections and did not control the proper condition of the equipment, this is downtime due to the fault of the employer. If there were any force majeure circumstances, this is downtime for reasons beyond the control of the employer and employee. If the equipment was used in violation of operating rules, this is downtime due to the fault of the employee.
  As for the difficult financial situation, the position of experts is ambiguous.
  Some are inclined to conclude that the employer, in accordance with Art. 22 of the Labor Code of the Russian Federation is obliged to provide work stipulated by the employment contract. And if the employer was unable to collect a sufficient number of orders and was unable to provide the employee with work, the downtime in this case was due to the fault of the employer.
  The opinion of other experts is that the employer is not to blame in this case, as well as in cases where the organization was let down by suppliers.
  In such cases, in our opinion, it is more expedient to either pay for this period as downtime for reasons beyond the control of the employer and employee, or to analyze each situation individually and in some cases pay for it as downtime due to the fault of the employer, and in others for reasons independent of the employer and employee.
  But be prepared for the fact that the employee may not agree with your decision and go to court. And the court will determine the presence or absence of the employer’s guilt in this case.
  During downtime, it is possible to transfer the employee to another job (Article 72.2 of the Labor Code of the Russian Federation).

Payment of sick leave

In accordance with clause 5, part 1, art. 9 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, from January 1, 2011, temporary disability benefits are not assigned to the insured person for the period of downtime. Exception, in accordance with paragraph 7 of Art. 7 of this Law, there are situations where temporary disability occurred before the downtime period and continues during the downtime period. Temporary disability benefits for the period of inactivity are paid in the same amount as wages are maintained during this time, but not higher than the amount of temporary disability benefits that the insured person would receive according to the general rules.

Taxes during downtime

Payment for forced downtime is considered employee income subject to personal income tax (Clause 1, Article 210 of the Tax Code of the Russian Federation). In accordance with Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, all income of the taxpayer received by him, both in cash and in kind, or the right to dispose of which he has acquired, is taken into account.

In accordance with Art. 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the territorial compulsory medical insurance funds”, the objects of taxation of insurance premiums for payers of insurance premiums are payments and other remunerations accrued by payers of insurance premiums in favor of individuals within the framework of labor relations. Consequently, payment for forced downtime is subject to insurance premiums.

In accordance with clause 3 of the Decree of the Government of the Russian Federation dated March 2, 2000 No. 184 “On approval of the Rules for the accrual, accounting and expenditure of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases,” payment for downtime is subject to insurance premiums against industrial accidents and occupational diseases.

Downtime due to the fault of an enterprise is a temporary suspension of work for reasons of an economic (difficult financial situation), technological (change in production methods), technical (breakdown, replacement of production equipment) or organizational (reorganization of structural divisions) nature (part 3 of article 72.2 of the Labor Code RF).

Downtime may affect:

• the whole organization;
• a structural unit or a certain part of employees;
• a certain employee.

Downtime can occur due to the fault of the employer or employee, as well as due to circumstances beyond the control of the parties (natural disaster, accident). The employer is obliged to comply with the rules for registering downtime. Firstly, it is necessary to document the reasons for the suspension of production, and secondly, to issue an order declaring downtime.

With the permission of the head of the organization, employees may be absent from the workplace during downtime. But it should be noted that they are not exempt from performing their labor duties, since in accordance with Art. 107 of the Labor Code of the Russian Federation, downtime is not rest time. According to Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, when a downtime regime is introduced, the employer has the right to transfer the employee without his consent for a period of up to one month to a job not stipulated by the employment contract.

Payment for forced downtime

Registration of downtime due to the fault of the employer presupposes the preservation of the employee’s wages. In this case, the amount of payment must be at least two-thirds of the employee’s average salary.

Downtime caused by reasons beyond the control of the parties is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime (Article 157 of the Labor Code of the Russian Federation).

Procedure for registration of downtime

The first stage of recording downtime is to identify the factors that lead to the suspension of the enterprise’s activities (equipment breakdown, difficult financial situation, etc.). When these circumstances are identified, employees draw up a report, which is the basis for the issuance of a corresponding order by the head of the organization.

The memorandum is registered by personnel specialists in the memo log and stored in the organization for 3 years. After receiving the report, the head of the organization must issue an order to declare downtime. The order is drawn up arbitrarily and must be signed by the head of the organization.

In case of downtime of workers at the enterprise, the employer is obliged to notify the employment service in accordance with paragraph 2 of clause 2 of Art. 25 Law of the Russian Federation “On Employment in the Russian Federation” dated April 19, 1991 No. 1032-1. The employer is obliged to notify the employment service in writing within three working days after the introduction of a downtime regime at the enterprise.

After eliminating the reasons, the head of the organization must issue an order to cancel the downtime. If the order declaring downtime already indicates the date and time of the end of the regime, then there is no need to issue a cancellation order.

After the end of the downtime at the enterprise, the manager must again notify the employment service in writing. But if the head of the organization in the first notification has already indicated the date and time of the end of the production downtime, then there is no need to notify the employment service again.

After familiarizing yourself with the step-by-step procedure for registering downtime due to the fault of the employer, you can download the memo and all the necessary orders on this page.

Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. The Labor Code of the Russian Federation mentions it quite briefly, although in practice it often becomes necessary to issue a simple one. It can be caused by equipment failure or emergency circumstances. In some cases, workers are sent to idle time who cannot be transferred to another job or left in the same job (for example, if it is contraindicated for them). Regarding downtime, there are clarifications from Rostrud and other departments at the request of law enforcement officers.

Whose fault and for what reasons can downtime occur?

May occur due to the fault of the employee, the fault of the employer or due to circumstances beyond the control of the employee and employer.

The employee’s guilt is expressed, for example, in the breakdown of a machine, mechanism, device or other equipment, resulting in the impossibility of working on it. The employer may be guilty of insufficiently organizing the labor process and not creating the necessary conditions for employees to perform their job duties, which resulted in downtime. Circumstances beyond the control of the employee and the employer may arise, for example, as a result of a strike, failure of counterparties to fulfill their obligations under the contract (untimely delivery of materials, parts, components, assemblies, etc.).

Confirmation: Part 3 of Art. 72.2, art. 157 of the Labor Code of the Russian Federation.

The causes of downtime (temporary suspension of work) are considered circumstances of an economic, technological, technical or organizational nature(Part 3 of Article 72.2 of the Labor Code of the Russian Federation).

Reasons of an economic nature include, for example, an economic crisis, a drop in demand for a product, a lack (lack) of clients (buyers), etc. Reasons of a technological nature are the introduction of new technologies (techniques, production methods) or the updating of existing ones. Reasons of a technical nature include malfunctions, breakdowns, and replacement of equipment. Organizational reasons mean, for example, the reorganization of the organization as a whole, the liquidation or reorganization of its structural divisions.

Comment:- Determining the culprit of downtime has its own characteristics. I believe that it is always necessary to take into account whose fault it is that employees are unable to perform their job duties, since payment for downtime depends on this. If one employee is guilty of damaging equipment that others use besides him, the rest of the employees will not be at fault for the downtime. This position was confirmed by Rostrud in its letter No. 1276-6-1 dated May 12, 2011., where he explained that if the same machine breaks down, fault during downtime can be determined differently. If an employee breaks a machine, the reason for the downtime for this employee will be his own culpable actions. For other workers using this machine, downtime will be caused by reasons beyond the control of the parties, because in this case, the breakdown of the machine is neither the fault of the employer nor these workers.

The guilty employee will not be paid for downtime, but the rest must be paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime.

Confirmation: Art. 157 of the Labor Code of the Russian Federation.

What is the procedure for registering downtime?

The registration procedure is as follows.

1. Record the fact of downtime.

The employee must inform the employer about downtime caused by equipment breakdown and other reasons that prevent the continuation of work. To do this, he sends a Notification to management about the start of downtime. In practice, the employee addresses the notification to his immediate supervisor, who, in turn, brings this information to the attention of the head of the organization through a memo. However, the employee can contact the head of the organization directly.

Confirmation: part 4 art. 157 of the Labor Code of the Russian Federation.

2. Issue an order to declare downtime.

Downtime for the organization as a whole or for individual structural units (specific employees) is formalized by order of the head of the organization. Since the unified form of the order has not been approved, it is issued in free form. The order includes the following information and conditions:

Start and end date of downtime. A specific end date may not be indicated if at the time the order is issued it is impossible to determine the duration of downtime (labor legislation does not establish any time limits for downtime);

Due to whose fault the downtime occurred: due to the fault of the employer, employee or for reasons beyond the control of the parties (if this is already known at the time of issuance of the order);

Positions (professions), full names of employees (employee) or names of structural units (divisions) of the organization in respect of which downtime is declared;

Amount of payment for downtime;

The need for the presence at the workplace of workers in respect of whom idle time is declared or they are allowed not to go to work (indicating specific names, structural divisions or the entire organization as a whole).

The downtime order must be familiarized with the signature of the employees of the organization to whom it applies.

3. Notify the employment service about downtime if it is associated with a suspension of production.

At the same time, as Rostrud explained in letter No. 395-6-1 dated March 19, 2012, we are talking about the suspension of production as a whole, and not of individual units or equipment. This must be done within three working days after the decision is made to suspend production (declare downtime) (paragraph 2 of Article 25 of the Law of the Russian Federation No. 1032-1 of April 19, 1991). Since the unified form of the message has not been approved, it can be compiled in free form.

4. Fill out downtime registration sheets (downtime acts).

Downtime record sheets and downtime reports are designed to record the specific downtime of each employee or structural unit (organization) as a whole. The unified form of such documents has not been approved, so they are drawn up in free form.

How to draw up a downtime record sheet and a downtime report?

A downtime record sheet is drawn up, as a rule, in case of downtime for individual employees of a structural unit and includes the following information:

The start date of the downtime and its end (if it is possible to set the end date);

The reason for the downtime (it is advisable to indicate it in strict accordance with the wording of Part 3 of Article 72.2 of the Labor Code of the Russian Federation);

Due to whose fault the downtime occurred: due to the fault of the employer, employee or for reasons beyond the control of the parties (if this is already known at the time of drawing up the document);

Positions (professions), full names of employees (employees) or names of structural units (divisions) of the organization that suspended work;

Signature and transcript of the signature of the head of the structural unit in which the employees are idle.

A downtime act is drawn up if a structural unit or organization as a whole is idle. It is signed by the heads of idle structural units, the human resources department, the labor protection service, a representative of the workforce, etc. The downtime act states:

Reason and duration of downtime;

The guilty side of downtime;

Positions (professions) of employees or names of structural units (divisions) of the organization that suspended work, etc.

The act is approved by the head of the organization.

In addition to the specified information, downtime accounting sheets and downtime reports may contain calculations of the organization’s losses from downtime, in particular the amounts to be paid to employees during the downtime period, the amount of taxes and insurance premiums on them, depreciation deductions for idle facilities, utility costs for mothballed premises, etc.

Is an employee required to be at the workplace during downtime?

Must be present except in the case where the employer has allowed him to be absent from work and has issued such permission in writing (for example, by order).

Labor legislation does not directly regulate the issue of the need for workers to be present at workplaces during downtime. But since the downtime period refers to working time (Part 1 of Article 91 of the Labor Code of the Russian Federation), and not to rest time (Article 107 of the Labor Code of the Russian Federation), employees cannot use it at their own discretion and leave their workplaces. Their absence from work without the employer’s permission can be regarded as a violation of labor discipline.

The employer (the head of the organization) has the right to decide that during the downtime period the employee may not be present at work. It is advisable to issue such an order in writing, for example, to include it as a separate paragraph in the Order declaring downtime.

It should be taken into account that if the employee is on a probationary period, downtime is excluded from the probationary period if he is absent from work. But if the employee does not leave the workplace during the downtime period, this time will be included in his probationary period.

Confirmation: Part 3 of Art. 72.2, art. 157 of the Labor Code of the Russian Federation, paragraph 7 of Rostrud letter No. 395-6-1 dated March 19, 2012.

Is downtime included in the length of service that gives the right to another paid vacation?

Included in work experience.

The length of service that gives the right to annual basic paid leave includes, in particular, the time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulatory acts and an employment contract preserved the place of work (position) (paragraph 3, part 1, article 121 of the Labor Code of the Russian Federation).

Rostrud explained that during the period of downtime, the employee retains his place of work (position) regardless of the reasons for the downtime. Therefore, downtime, regardless of its reasons (including due to the fault of the employer, the fault of the employee or due to circumstances beyond the control of the parties) is included in the length of service, which gives the right to the next paid leave (clause 5 of Rostrud letter No. 395- 6-1 dated March 19, 2012).

The optimal way to achieve economic efficiency from the work of a hired team is rhythmic and continuous work throughout the working day or shift. Interruptions and difficulties arise when the smooth flow of the process is interrupted for unforeseen good, or not so good, reasons. If the failure occurred due to the sluggishness or negligence of the management, then the employee must understand that this is regarded as forced downtime due to the fault of the employer.

What is simple

Important! Please keep in mind that:

• Each case is unique and individual.
• A thorough study of the issue does not always guarantee a positive outcome. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the options offered:

Everything related to working hours and rest periods is set out in chapters 15-19 of the Labor Code of the Russian Federation. Unfortunately, there is no clear definition of downtime in any of them. A brief description of what a downtime is and how to behave if it occurs is mentioned in Art. 72.2 TK. The meager clarification that this is a temporary suspension of production for various reasons, most often of an objective and irresistible nature, does not make it possible to unambiguously attribute this period to either working time or rest time.

The amount of payment for downtime depends heavily on proof of fault for its occurrence. That is why almost all employers strive, if not to shift responsibility onto the employee, then at least to prove that nothing depended on management. But judicial practice in this regard is inexorable. They include economic, technical, and organizational causes of production failure as the employer's fault. Circumstances independent of the will of the parties, most often, are recognized only as force majeure in the form of catastrophes, disasters or military actions, the presence of which is confirmed by documents from the Chamber of Commerce and Industry.

The courts also blame the management body of the company for the lack of full production capacity due to the economic crisis.

Indirectly, the code determines the form of liability of the director for downtime that arises as a result of insufficiently active and conscientious performance of the manager’s duties. This allows the general meeting of participants to bring the negligent leader to disciplinary liability, and even fire him on this basis.

Registration

The deterioration of external economic factors, the destructive influence of natural disasters or technological problems, leading to the inability to continue work as before, themselves bring losses. In this case, management will be able to reduce costs if they correctly document the time of forced downtime due to the fault of the employer:

• Having received notification, in any form, about conditions that have stopped work, you need to make a decision to declare downtime as quickly as possible.
• Identify those at fault (the employee, the employer himself or force majeure);
• Determine the terms; if this is impossible, then the suspension is declared indefinite;
• Resolve the issue of the presence of workers affected by downtime at production;
• Issue an order, it must list all the above details, and also, preferably, explain the form and amount of payment (it depends on the reasons and those responsible);
• Under signature, familiarize the entire team or that part of it that is left without work with it.
• Offer affected employees to transfer to vacant positions while maintaining the average salary for the entire period of downtime.
• Transfer some employees to vacant positions not lower than their previous qualifications, without their consent, but for a period of no more than a month, Art. 72.2 TK.
• Within three days, notify the employment service, clause 2 of Art. 25 of Law 1032-1 Federal Law. This must be done if the entire enterprise has completely stopped work; being late can cost a fine of up to 5,000 rubles, Art. 19.7 Code of Administrative Offences.
• Enter notes about downtime in the working time sheet, form T-13. The accounting code is selected depending on the circumstances: the employer’s fault is indicated by the abbreviation RP or the numerical code 31.
• If the inability to work does not affect all employees, then this must be recorded in free-form acts, and then reflected in the time sheet.

The faster and more carefully the employer prepares all the documents, the more money the company will save on wages. If employees are not notified, and their payment is calculated in a reduced amount, then contacting the labor inspectorate is the least that can threaten the enterprise. It is also illegal to require employees to perform their duties during downtime, even when they are at work all day.

The greatest damage from downtime is caused to the enterprise, regardless of whether the employer is at fault.

The employer does not want to issue idle time

The likelihood that management will refuse to take measures to formalize downtime is very low. After all, it is the enterprise that suffers most from the suspension of production. Another issue is that unscrupulous bosses may try to convince workers to go on unpaid leave during economic difficulties.

It happens that this policy is implemented by a hired company manager, trying to hide the results of short-sighted decisions in the management of the enterprise. The team can protect itself by writing an appeal to the founders with a request to bring the head of the enterprise to disciplinary liability for allowing forced downtime due to the fault of the employer. It can be handed over personally to the head of the meeting of participants or shareholders, or through the mediation of a trade union.

The arbitrariness of management, with the inaction of the management body of a commercial organization, can be suppressed by government agencies for supervision in the field of labor legislation: the labor inspectorate, the prosecutor's office and even the court. You just need to remember that government agencies will require evidence that workers are at work and cannot work fully due to the fault of the employer. Drawing up a collective complaint will be very helpful in protecting your own rights.

During downtime due to the fault of the employer, the employee has the right to count on 2/3 of the salary, minimum, art. 157 TK.

How to write an application

When downtime occurs as a result of global causes (economic shocks, disasters, etc.), management does not need additional notification. But there are situations when management simply cannot find out about troubles until subordinates report to them. This must be done if the breakdown is local in nature, an accident occurs in a separate area, there are no raw materials or materials for work, equipment or the entire production is de-energized. Notification will also be required if downtime began due to the fault of an employee.

The application for forced downtime due to the fault of the employer does not have a legally established form, and therefore is drawn up arbitrarily. However, it would be more correct to title such a document “Report.” Whatever name you choose, you need to write down several very important points inside:

• in whose name the document is drawn up indicating the position, full name and name of the enterprise;
• description of what happened;
• time of first stop of work;
• causes and alleged culprits;
• It is mandatory to have the employee’s signature, as well as the date and time of handing over the paper to immediate superiors.

You can view an example of a statement on our website ()

To be fair, it must be said that the Labor Code of the Russian Federation does not oblige employees to declare the beginning of downtime in writing. Drawing up a paper, it is better to do it in two copies, will be more correct and calmer for the employee. Such actions are all the more relevant if continuation of work is impossible, since it poses a danger to life and health. After all, Art. 214 of the Labor Code simply obliges all employees to report this to senior management.

A notification handed over to management against signature will help the worker further prove his innocence, as well as confirm the fact of a timely contact with the employer.

Continuing to work in conditions hazardous to the health of the employee or other members of the team, without reporting this to the authorities or after it, is illegal, Art. 214 TK.

How is it paid?

Art. brings certainty to the question of how forced downtime due to the fault of the employer is paid. 157 TK. The amount of payments and the fact of their implementation greatly depend on the circumstances:

The first two points, upon quick examination, are very similar, but not at all the same. For those who receive a salary consisting solely of the tariff rate, it really does not matter whose fault the problem arose. Whatever precedes the start of downtime, the team’s employees will receive the same amount of payments.

Another question is enterprises that regularly pay bonuses, allowances, and additional payments based on work results. In this case, the employer will be interested in convincing employees of their own innocence and the influence of force majeure circumstances. After all, this is precisely what will allow you to pay two-thirds of the tariff rate, and it can be very small compared to the final amount of accrual in the payroll.

The Labor Code establishes a unified approach to calculating the average salary in all cases mentioned in this document (Article 139 of the Labor Code). For example, a downtime occurred in August 2017. The salary is 10,000 rubles, the monthly bonus is 50% of the salary. To simplify calculations, we can assume that the amount of accruals has not changed over the previous 12 months, then payment for 10 days of downtime will be:

(10,000+5,000)*12/12/29.3*10 days*2/3 = 3,412.97 rubles - payment for forced downtime due to the fault of the employer;

10,000/12/12/29.3*10 days*2/3 = 2275.31 rubles – the amount of payments if the suspension of work occurred for reasons beyond our control.

As you can see, the temptation to save on payments for the employer is very great, so management will insist in every possible way that they had no opportunity to influence the circumstances. If employees, against the backdrop of financial losses, have reasonable doubts about the employer’s honesty, the Labor Inspectorate or the court will help assess the seriousness of the reasons.

What does the employee do?

Some workers tend to simplify the situation in the event of an unexpected interruption in work. Whatever the reason for the downtime and no matter how long it lasts (half a day or six months), the employee is obliged to be present on site every day, at the hours established by the employment contract. And although the code does not directly say this, it does not include these hours during the period of legal rest (Article 107 of the Labor Code). In this situation, the conclusion should be drawn: what is not permitted is prohibited.

To be fair, it is worth saying that the employer can mention the obligation to be present at work in the order. There he has the right to both force him to stay in place and allow him to stay at home all this time. The fact that the order does not indicate the need to be present on the territory of the enterprise will not be a permission to miss work. In the event of unauthorized leaving of the workplace or missing days as a result of unfounded conclusions, the employee should not be surprised that he will become a candidate for dismissal for absenteeism, Art. 81 TK.

The need to be present at production during forced downtime due to the fault of the employer may be dictated by:

• the likelihood of emergency situations occurring, then the team on site will be able to quickly eliminate all negative consequences or prevent them altogether;
• the possibility that the reasons for the downtime will disappear suddenly (for example, the electricity supply will be connected), and therefore the time for the start of the resumption of work cannot be predicted;
• the employer is simply not inclined to pay employees the average for their absence from work.

All employees, even if they do not have the opportunity to perform their job functions, must remain on the territory of the enterprise or its structural unit; they will be able to leave the workplace only if such relief is fixed in the downtime order or collective agreement.

Dismissal during downtime: features, compensation

Forced downtime due to the employer's fault, lasting quite a long period, will invariably push team members to look for a new job. If its results turn out to be positive, then the question will arise about how to properly part with the “old” employer. In this case, two options are most likely: one’s own desire (Article 80 of the Labor Code) and agreement of the parties (Article 78 of the Labor Code).

Most often, the management of an enterprise that finds itself in difficult economic circumstances is sympathetic to the attempts of employees to change their place of employment. It is especially easy for an employer to agree to this if they do not expect the downtime to end soon or even foresee the possibility of liquidating the company. Then the parties sign a dismissal agreement and register the employee one day.

There are also frequent cases when management interferes and does not provide payment without a notice period, Art. 80 TK. From a moral point of view, this act may be condemned, but the law is completely on the side of the employer. If an employee himself decides to leave, he is obliged to notify about this 14 days in advance; the fact of downtime cannot shorten this period. A problem may arise if forced downtime due to the fault of the employer is declared for all employees, and the order about it allows employees not to report to work locations. Then a situation will arise in which there is simply no one to apply. There are several ways to get out of this situation:

• send a letter by mail to the legal address of the company and to all known addresses;
• review your employment contract to see if it contains the employer’s email address, and send an application to it;
• find a way to meet with the manager or HR representative in a non-production setting and convince one of them to take the document.

In any case, the countdown of two weeks will begin only from the next day from the date of receipt of the letter by the employer or his representative. A State Labor inspector will help sober up an “overbearing” manager who is preventing legal dismissal. The management will definitely read his message and react.

Regardless of the grounds for dismissal, the list of payments when calculating is the same:

• Remaining salary.
• Compensation for vacation days.
• Debt for overexpenditure of accountable amounts.
• The remaining compensation amounts, if provided for by the collective agreement.

Downtime is a most unpleasant event for both the employee and the employer. After all, even with production stopped, the latter is forced to incur financial losses, in particular, to pay 2/3 of the salary to the team. Mutual understanding and the desire to return to the working rhythm as quickly as possible will help shorten the difficult period and reduce its negative impact on labor relations. And the main positive effect will be the application of maximum efforts by both parties to the resumption of work.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

Work processes are not always constantly stable and the reason for this is not always crisis events. Lack of workload can also happen because the enterprise has not started modernizing its production, when it is necessary to install new equipment, for example, or other technological and technical changes. Correctly executed downtime due to the fault of the employer is beneficial, first of all, to the enterprise itself.

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Forced downtime

We will find the definition of downtime in the Labor Code of the Russian Federation in Article 72.2. Downtime is defined by the Labor Code of the Russian Federation as a temporary suspension of work for various reasons. Several reasons have been given, and they can arise either through the fault of the employee or the fault of the employer. And downtime also happens through no fault of the employee or the employer, i.e. for reasons beyond the control of the parties.

The forced downtime of the Labor Code of the Russian Federation allows it to be issued in the presence of certain circumstances. Examples of reasons why forced downtime in an organization can be issued include the following:

• equipment breakdown,
• modernization of the production line,
• reorganization of the entire enterprise,
• lack of raw materials for production,
• interruptions in the organization's power supply,
• revocation of the activity license,
• issuance of administrative acts prohibiting or suspending the work of the organization and even weather conditions.

And such circumstances can occur both through the fault of the employer and the fault of the employee. Or there will be no fault of the parties to the employment contract at all.

The question of how to formalize and pay for downtime due to the employer’s fault most often arises in the sphere of production activities, in industry, where as a result of work quite tangible products are created and it is their sale that brings profit to the company. But it happens that such situations require registration in ordinary, few offices. For example, in case of serious power failures and the inability of office equipment to operate.

Often, when such situations arise, employers try with all their might not to pay employees for the time when they are forced to be unloaded with work. For example, they persuade you to write an application, force you to go on regular vacations, etc. These actions are the subject of close attention of the courts when such disputes come up for consideration. All aspects are assessed - the reasons for the suspension of work, time periods, the possibility and reality of resuming work, documentation.

Downtime should not be confused with shortcomings. If an employee does not stop working and does not work out the normal length of the working day or shift, then we are talking about underperformance. This distinction is very important for both the employee and the employer to understand, because the amount the employee receives as payment depends on this difference. So, according to Art. 155 of the Labor Code of the Russian Federation, in case of failure to comply with labor standards or failure to fulfill labor duties precisely through the fault of the employer, remuneration is made in an amount not lower than the average salary of the employee, calculated in proportion to the time actually worked.

And here a lot of legal disputes arise, where employees try to convince the court that it was the employer’s fault that there was a deficiency in order to receive the average salary in full. At the same time, paying for forced downtime due to the fault of the employer costs the enterprise less than stating the fact of shortcomings. This will be discussed further.

Forced downtime due to the fault of the employer under the Labor Code of the Russian Federation

Labor relations are very diverse, and situations arise when the employer is clearly and indisputably at fault for the suspension of work. But it also happens that accusations against an employer who failed to provide work for its employees are quite controversial.

Question from practice

How to pay for downtime caused by the fault of the organization?

The answer was prepared jointly with the editors

Nina Kovyazina answers,
Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health

Downtime caused by the organization is paid on the basis of a time sheet. The amount of payment for this downtime due to the fault of the organization cannot be less than 2/3 of the employee’s average earnings (Part 1 of Article 157 of the Labor Code of the Russian Federation).

If the organization uses unified forms of documents, then in the report card in form No. T-12 or No. T-13, opposite the name of the idle employee, indicate:

• The first line contains alphabetic or numeric idle codes:
• through the fault of the organization “RP” or “31”;
• for reasons beyond the control of the organization and employee, “NP” or “32”;
• through the fault of an employee “VP” or “33”;
• in the second line the number of hours and days of downtime.

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The Labor Code names the economic situation as one of the reasons for objective difficulties. The line here is quite thin. Courts, for example, often interpret the inability to work due to lack of orders as a business risk that clearly falls on the shoulders of the employer. Those. It is the procedure for conducting commercial activities that leads to the impossibility of work due to economic reasons.

Risks of commercial activity also include:

• bankruptcy of counterparties;
• liquidation of debtor enterprises;
• changes in exchange rates, etc.

In these cases, court decisions interpret such situations as downtime due to the fault of the employer, and not due to reasons beyond the control of the parties.

There are court cases where employees challenge downtime at the enterprise through the fault of the employer, imposed on laid-off workers. Those. the employer notifies the employee of the upcoming layoff and at the same time issues a downtime order. The courts side with the workers and justify their decisions by the fact that in this case one of the main features is missing - temporary.

In other words, the employer was unable to prove that it had intentions to re-employ the workers, laid off due to staff reduction that this situation is only temporary. Thus, downtime due to the fault of the employer cannot be unlimited or infinite. This is always a strictly defined period of time.

But according to the Appeal ruling of the Moscow City Court dated 07/02/2013 in case No. 11-20513/2013, downtime on the eve of the liquidation of the enterprise was recognized as justified. Thus, the line when employee downtime occurs due to the fault of the employer, and not for other reasons, is shaky.

This tool can also be used by the employer as a way to deal with unwanted employees - force them to write voluntary resignation letter , remove an objectionable employee, etc. The risk for the enterprise is that the employee will go to court with one of the demands to declare the order illegal and in his favor not 2/3 of the average earnings will be recovered, but the average earnings in full. And, as we see, the courts approach the examination of evidence on this topic very scrupulously.

Downtime due to the fault of the employer - how to register: step-by-step algorithm

The employer's will alone is not enough here. This is evidenced by court decisions taken in favor of workers. The organization must have documents justifying its reasons. These may be memos, reports, acts recording facts of absence of work, accounting and other financial sources.

Documentation is further complicated by the fact that the law does not have a clear procedure for how to document downtime due to the fault of the employer. Therefore, here the employer will have to act in accordance with the customs of turnover and on the basis of conclusions drawn from the analysis of judicial practice.

Step 1. Place an order. The order must reflect:

• specific dates for the introduction of downtime and its end. There may not be an end date only in the case where it is difficult for the employer to determine the circumstances surrounding the temporary cessation of work;
• reason for downtime and an indication of the employer’s guilt;
• list of employees indicating their positions and structural units in respect of which this regime is introduced;
• link to the norm of the Labor Code of the Russian Federation with a description of how payment is made for forced downtime due to the fault of the employer;
• indication of the need for workers to be present, in respect of which this regime has been introduced, in the workplace. It should be remembered here that if this circumstance is not specified in the order, then by default workers must be present at their workplaces. This follows from the interpretation of the Labor Code that downtime is not included in the rest period, although workers are not overloaded with work at this time. Therefore, if it is more profitable for the employer for employees not to be at work, then this possibility should be directly indicated in the order.

As with any other orders regarding employees, they must familiarize themselves with the downtime order by signing it. There is no unified form of order.

Step 2. Notify the employment service about the introduction of the downtime mode. But this is not necessary to do in all cases, but only when the activity of the entire enterprise is suspended. The applicable rule of law in this case is para. 2 p. 2 art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation”.

A notice of termination of the enterprise's activities must be sent within three working days from the moment the decision is made. The form of the message has not been approved; therefore, this fact can be reported in free form.

Step 3. Reflect the fact of downtime in . For such cases, there is a special letter and number designation - downtime due to the fault of the employer; according to the Labor Code of the Russian Federation, it is mandatory to record it in the time sheet, since this period is included in working hours.

Please note that there is judicial practice where “failure to reflect” downtime on the timesheet even entails the illegality of its introduction ( Appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated 02/03/2014 in case No. 33-321/2014).

Downtime due to the employer's fault: how is it paid?

Art. 157 of the Labor Code of the Russian Federation answers this question - at least two-thirds of the average salary of an employee. The easiest way to do this is using the formula:

Average daily earnings x 2/3 x number of days without work

Average earnings are calculated not simply by calculating the arithmetic average, but in compliance with labor law standards - Art. 139 Labor Code of the Russian Federation, Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages”.

It should be noted that internal acts of the enterprise, including collective labor agreement , a different amount of downtime payment may be established, certainly higher than that established by law, since it is prohibited to worsen the employee’s position in comparison with the norms of the Labor Code of the Russian Federation.

Reference and legal systems provide quite a variety of examples of calculations, including how to pay for downtime due to the fault of the employer if the employee did not work for only a few hours.

How long can downtime be due to the employer's fault?

As we have already discussed above, an employee cannot stand idle without a deadline. The employer is sometimes aware of the end time of the downtime in advance, but sometimes information about the situation affecting the absence of work is unknown in advance. Depending on this, the order either indicates a specific period or indicates wording linked to the event. Such an event, for example, may be the fulfillment of contractual obligations by suppliers and counterparties. In this case, an additional administrative act on the end of the downtime will be required, with which employees must also be notified. In any case, regarding the timing, you need to remember that forced downtime according to the Labor Code of the Russian Federation is always a temporary suspension of work. And this time must be indicated in the documentation.

Notice of downtime due to the fault of the employer: sample

In the section on the registration procedure, we indicated that in the event that an enterprise completely temporarily suspends work, it is necessary to inform the employment service about this. Often, territorial divisions develop their own form of notification, but notification in a different manner will not constitute a violation. For example, you can report it like this:

« In connection with the modernization of production, by order of LLC "____" dated 08/01/2019 No. 12, employees of LLC "_____", with the exception of administrative personnel, were placed on idle time due to the fault of the employer from August 3, 2019 to September 20, 2019. ».

The notification is prepared on the enterprise's letterhead and signed by the sole executive body.

Downtime due to the fault of the employee: how to register

Such downtime is recorded if the employee lost his workload through his own fault, for example, due to the employee’s unlawful actions, work equipment broke down. Downtime due to the employee’s fault should not be confused with by suspension from work, the reasons for which may be:

• lack of mandatory medical examination;
• failure by the employee to undergo training and testing of knowledge on labor protection;
• requirement of regulatory or judicial authorities.

Downtime due to the fault of the employee is processed similarly to downtime due to the fault of the employer. That is, on the basis of official or memos about the fact of a breakdown, a corresponding order is issued. The order must indicate that a temporary suspension of work is being announced due to the fault of the employee, and a link to Art. 157 Labor Code of the Russian Federation– then the employee’s idle time for this reason will not be paid.

INtime sheet it is also indicated that the employee was downtime due to his own fault; a special alphanumeric code is provided for this.

Forced downtime for reasons beyond our control

Reasons for temporary suspension of work s and reduction of working hours in the absence of fault of both the employee and the employer, there may be natural phenomena or man-made disasters. Recently, there has been a practice of declaring this type of downtime in offices and industrial premises during periods of abnormal summer heat, when there are no air conditioning systems.

Practical situation

How to arrange a simple

The answer was prepared jointly with the editors of the magazine " »

Alena SHEVCHENKO answers,
lawyer, expert of the magazine "Personnel Business"

Interruptions in the supply of equipment and components during a crisis are not uncommon. Not to mention the drop in demand for goods, accidents, etc. Because of this, many employers are forced to suspend production. To save jobs, they declare a shutdown. However, in order to enter a simple one, you need to follow a certain order. You will learn how to arrange downtime in the organization in the article.

Downtime is a temporary suspension of work (part three of Article 72.2 of the Labor Code of the Russian Federation). The reasons for such a suspension may be different: economic, technological, technical or organizational (table below). In this case, the employer can declare downtime in relation to all or several employees...

The full answer is available after free

The registration procedure is similar here. The only difference will be in the indication of the reason - in this case, beyond the control of the parties - and in the order of payment.

Payment for downtime due to reasons beyond our control

Art. 157 Labor Code of the Russian Federation– for independent reasons - at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to downtime. You can use the formula:

Salary / number of working days in a month of inactivity x 2/3 x number of working days without work

If difficulties arise with calculations, the help systems provide various examples of calculations.

Thus, payment for downtime due to the fault of the employer is made at the highest rate, therefore the evidence base must be collected most thoroughly. Attention should also be paid to recording the differences between downtime and shortcomings, because this directly affects the company’s expenses for employee benefits. Professional personnel service employees should have up-to-date knowledge of how forced downtime due to the employer’s fault is paid.

And enterprise managers should remember that any attempts to give a legal appearance to illegal actions when recording and paying for temporary forced suspensions of work are fraught with losses greater than if all the requirements of the Labor Code of the Russian Federation are met.