Irregular daily routine. The nuances of the Labor Code: what is an irregular working day? Irregular working hours and overtime - differences

Employment - important point in the life of every person. After you find yourself a place of work, you will have to go there and do your official duties. But only in a certain amount. It's about time. How long is a normal working day? What norms are provided by modern legislation regarding the duration of work (per day, week)? Who is entitled to benefits in this sense? All this is extremely important to know and understand. Otherwise, the employer will simply be able to deceive you after employment, constantly forcing you to work longer than stipulated by the employment contract. Or, initially, the duration of your shift will be beyond the limits of possible restrictions. All these are extremely unpleasant moments, so you should know exactly your rights regarding how much you have to work.

concept

In Art. 91 of the Labor Code of the Russian Federation reveals a concept that plays an important role for work. Namely, what is working time. Not everyone is fully aware of what goes into this. Therefore, before studying the duration of labor, it is necessary to understand what is working time.

This period is a period of time in which the employee must perform his job duties, according to the labor / collective agreement. It also includes other times provided for by federal acts and laws, as well as an agreement between the employer and the employee related to labor time. This is such a simple concept of working time.

It can be said that this is simply a period in which you must fulfill your duties. "Sit at work" - as some employees in Russia say. Everything is very simple. Much more difficult question is the theme of duration labor day.

weekly rate

In Art. 91 of the Labor Code of the Russian Federation indicates not only the concept of a working period. The thing is that some more norms for the duration of this are prescribed here. So, for example, you can say exactly how much an employer has the right to load employees with work per week.

In total, 40 hours are allotted for this. In a week, this is how much each able-bodied citizen is able to work out as much as possible. There are exceptions, but they are not so many. By the way, if you think about it, it is not very difficult to distribute 40 hours per week. Much depends directly on your schedule, but some rules in the Labor Code are also provided in this regard.

It is also worth paying attention to the fact that each employer is obliged to keep records of the periods worked by each of his subordinates. Otherwise, the leader violates the laws of the country. And he can be held accountable.

Deviations from the norm

We already know the concept of working time. Moreover, it is not a secret and how much is allowed to work as much as possible per week. Only, as already mentioned, there are sometimes some exceptions. Both in relation to the working day and in relation to the working week.

A reduced weekly schedule is provided for minor applicants. If a citizen is not yet 16 years old, then a week he can work 16 hours less than everyone else. After reaching this age limit and up to adulthood, the norm will be 36 hours in 7 days. No more.

Normal working hours are reduced by 5 hours for disabled people of groups 1 and 2. In some cases, such employees, for medical reasons, are able to work less than is allowed (to the maximum). But the norm for the disabled per week is 35 hours.

Some personnel are employed in dangerous or hazardous work. For them, the Labor Code also provides for its bonuses. Such employees are allowed to perform their duties per week for 4 hours less than ordinary employees. Their working week is limited to 36 hours.

Not completely

There is such a thing as a normal working day. The Labor Code of the Russian Federation provides for some deviations from the norm. For example, a part-time/week appointment.

According to the legislation of the country, the employer, at the request of the employee, must provide him with work "in part". Only not everyone is able to count on such opportunities. As a general rule, only pregnant women and parents of children under 14 (or disabled under 18), including those caring for a sick relative, are entitled to part-time work.

Please note that there should not be any consequences for the social package in this case. According to the Labor Code of the Russian Federation, a working day (part-time) under such circumstances does not in any way affect the provision of paid leave, sick leave and length of service. But earnings will directly depend on how much you have worked or how much work you have done. It turns out that part-time employees usually earn less than those who work at the norm.

Norm for minors

And now you can think about how much is a normalized working day. I must immediately note for myself that the category of citizens in question plays a huge role. As already noted, the working week in its duration differs in certain cases. Similarly, this is reflected at the bottom (shift).

The first step is to understand how much it is supposed to work for minors. The normal working hours for able-bodied persons under the age of 16 is 5 hours. That is how much a student can work. But only when it comes to the period in which the frame is not trained. During study, you can work no more than 2.5 hours.

A working day of 7 hours is established for minors from 16 to 18 years of age. Again, taking into account the fact that the subordinate is not trained anywhere. For example, in the summer. Otherwise, his working day cannot exceed 3.5 hours. Such restrictions are imposed on the employer. Failure to comply with these can lead to certain negative consequences. Although, as practice shows, modern schoolchildren usually work from 4 hours a day, if they earn extra money in their free time from school. And on weekends they can work shifts of 8-12 hours. Such actions are not entirely legal, but in practice they occur all the time.

Dangerous and harmful

Of course, citizens working in hazardous or hazardous industries also have some peculiarities in our today's issue. The thing is that they have a normalized working day can be different. It all depends on the duration of the working week of such personnel.

If it is 36 hours, then the shift cannot exceed 8. That is how much, in practice, employees usually work in hazardous / hazardous production. But when the working time per week should be a maximum of 30 hours, then shifts are set for 6 hours, respectively. It is not difficult to guess that it will take 5 days to work at a similar pace. The Labor Code of the Russian Federation does not provide for any other features in relation to personnel in hazardous or harmful production.

Other citizens

The duration of the shift for some categories of employees is determined in a very interesting way. The thing is that sometimes it is the employer who dictates how much a subordinate should work per day. But at the same time, taking into account all the norms and peculiarities of the legislation of the country.

Thus, media workers, as well as film/theater associations, actors and other creative teams have a working day established by the labor/collective agreement. That is, their limit value is set by the employer. Or the federal regulations of the country. For some professions, the country itself dictates time limits working norm in a day. Learn it.

Common Data

On this, all the features of working hours do not end there. Now it's time to find out exactly how much the average citizen works on average. That is, one who does not have any bonuses and benefits in our today's question.

How many hours is a standard working day for an employee of a particular organization? This indicator is equal to 8. That is, this is how long the shift of an ordinary average employee lasts on average. 8 hours of labor is not that much, to be honest. In this scenario, the working week should be no more than 5 days. Otherwise, the bar of 40 hours per week will be exceeded. And your work, either according to special principles, should be paid, or not at all.

As practice shows, most often employers simply offer to work on certain conditions, but in reality they get completely different ones. The employment contract says one thing, but the reality says something else. With all this, the maximum shift is usually indicated at 8 hours, but in practice, citizens are required to "plow" for 10-12. Additional time is not paid or rewarded in any way. Although, if we talk about processing, then it must somehow be covered by the employer in one form or another.

In some cases, you have to work at night. These periods have legitimate features in their duration. Night is considered the time interval between 22:00 and 06:00 inclusive. Not all employees are eligible to work in this mode. For example, it is forbidden to work at night for pregnant women, as well as for minors. The disabled are also included. Under no pretext are they allowed to work at night. Even on their own initiative. The employer must take all this into account, otherwise he can be held accountable for violating the laws established in Russia.

But the rest of the special categories of citizens (caring for disabled children, relatives, as well as with babies under 3 years of age) are able to work at night, but only with prior written personal consent. At any time, such personnel have the opportunity to refuse the night mode. Nobody can stop this.

The normalized working day, when it comes to working on the night shift, is one hour less than during the day. That is about 7 hours maximum. There are exceptions too. Namely, the reduction in labor does not apply to those who were hired specifically for night shifts. Such personnel will work as long as it is provided in employment contract. Usually, just from 10 pm to 6 am, hired workers perform their duties at night.

Near the weekend

Working on weekends and holidays is another subject of perpetual controversy. In Russia, the law regulates the norm of working hours before official non-working days.

The normal shift should be reduced by 1 hour. That is, work before weekends / holidays is supposed to be 60 minutes less than usual. Remembering this rule is not so difficult. It turns out that during the specified period, the average working time will be 7 hours instead of 8.

If we are talking about companies that cannot stop their activities on the weekend, then employees are entitled to remuneration. Either it is expressed by transferring the holiday to another period of time, or the shift is paid in double (or more) size. Usually, the conditions are prescribed in an employment contract or negotiated by the parties.

Above the norm

In some cases, you can legal grounds work more than the prescribed 40 hours. Either at the request of employees or at the request of the employer. These two concepts are very different from each other.

In the first situation, we will deal with a side job. It cannot exceed 4 hours of additional work per day, and 16 hours per week. With all this, the company's activities should not cause damage in any form to your main place of work. A citizen can have as many jobs as he likes, if it does not harm the main activity. The social package is provided in the same way as for all other employees.

But in the second case, processing is called overtime work. At the same time, you can work two days in a row, but not more than 4 hours per day. And for the year there is a certain limit of overtime work. It is currently 120 hours. Please note that such work is paid double. A part-time job is calculated according to the usual principles, without allowances.

In principle, this is all that can be said about the standardized working day, as well as the features of working hours. As a rule, you have to find out about your rights at work in advance. Indeed, in Russia, the established schedules are often violated, and employees are left to work overtime without additional pay. It is not so difficult to understand the established principles. Now we know the generally accepted norms regarding working hours. Remember, violation of these is unacceptable. You have every right to complain about

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

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

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What does it mean?

An irregular working day is considered a special mode of work, during which the head can give instructions on the performance by certain employees of the assigned tasks during non-working hours (Article 101 of the Labor Code of the Russian Federation).

According to the legislation (previously under the Labor Code, now the Labor Code of the Russian Federation), this rule registered in . A job candidate agrees with him when he puts his signature on certain documents. For this reason, the manager may not ask the candidate's express consent.

Download a sample employment contract with an irregular working day for free.

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

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

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

In addition, there are time limits working months and years. Rest time is a specific concept that controls the duration of each day's rest and holidays.

The enterprises usually have the usual five-day week, and they start work at nine in the morning. Individual workers at the same time, they can start their work, for example, at seven in the morning, or leave their workplace at eleven in the evening.

How to draw up an employment contract with an irregular working day, read our article.

Duration

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

Norms can be increased in two ways:

1. working out overtime hours;
2. increase in working hours.

According to the legislation, there are limits on overtime: this processing cannot be more than one hundred and twenty hours a year. This means that it is unacceptable to ask an employee to work more than four hours on two consecutive days without a day off.

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

An employee who is assigned to work for a non-fixed time must be aware of certain circumstances:

• The manager has the right not to be constantly interested: does the employee agree with such. He receives the consent of the employee at the time of signing the employment contract.
• If an employee does not want to work an irregular day, then this can be regarded as non-fulfillment of work duties.

But, it must be borne in mind that at the moment there is no single regulation for settling such disputes in litigation.

In any case, one should adhere to the rule that such daily work cannot be done.

Although this schedule bears the name of an irregular day, it must have some limits in duration. It is considered abnormal due to its difference with normal mode In the organisation.

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

In addition, irregularity is not the reason for the performance of the work that is not included in the duties of the employee.

There are more working hours, but this does not mean an increase in duties.

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

Time Log

To record the hours of an employee who works an unlimited day, the company maintains a log with fixation of working hours above the norm(part 4 article 91 of the Labor Code of the Russian Federation).

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

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

You will find a sample log of irregular time.

For the reason that irregular work does not occur on a permanent basis, it is recommended to have an additional register for such time recording.

Fill in the first sheet:

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

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

List of positions with irregular working hours

A regular working week is a five-day week with a duration of eight working hours. Many companies operate under this scheme. But, there is another mode of work, which is considered an irregular working day and applies to certain employees, and not to the entire company as a whole.

This list includes the following employees:

1. Director.
2. Branch manager.
3. Head of Department.
4. Deputy Manager.
5. Chief Accountant.
6. Warehouse Manager.
7. Personal driver.
8. And similar workers whose duty it is to carry out their work after the end of the working day.

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

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

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

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

What is the difference between overtime work and irregular hours?

For most people, overtime and overtime may be similar in definition, but legally, these concepts are clearly distinguished. A non-normative labor period is a certain working regime, according to which it is allowed to attract certain employees in addition to their usual schedule.

To understand the difference, consider the fundamental differences:

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

If the case concerns an irregular schedule, then the candidate is made aware of the existence of such a possibility.

2. The law specifies the length of overtime hours.

Such work may not exceed four hours on two consecutive days, and also one hundred and twenty hours throughout the year. A certain amount of hours non-standardized time is not specified in the legislation.

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

Abnormal time is not defined for employees, except for drivers.

4. Overtime doesn't have the nice bonus of extra vacation time.

If the employee works irregular time, then he is entitled to another vacation, lasting twelve days and sometimes a bonus.

A detailed explanation of the irregular working day in the video clip:

The concept is defined in 101 Art. Labor Code of the Russian Federation. However, practical use This mode raises many questions. The legislator did not indicate the evaluation criterion by which this regime can be established for employees, the content of Article 101 of the Labor Code does not answer the question of what caused the need to involve employees in the implementation labor functions outside of normal working hours. Such a concept as the episodic involvement of employees in the performance of their tasks has been left without attention. job duties during irregular working hours and quantitative criterion such episodic. The Labor Code does not determine what order of the employer is required for this - written or oral.

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

"Article 101. Irregular working hours

Irregular working hours- a special mode of operation, according to which individual workers may, by order of the employer, if necessary, occasionally be involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local normative act adopted taking into account the opinion of the representative body of workers. »

Analyzing Art. 101 of the Labor Code, the following points should be highlighted:

1) irregular working hours- this is special mode of operation;

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

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

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

5) to work on irregular working hours, employees can only be involved sporadically(that is, on a case-by-case basis, rather than regularly and systematically);

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

7) in the conditions of an irregular working day, the employee must perform their job functions.

8) outside the duration of working hours established for them - then under this regime, the duration of working hours is nevertheless established for them (that is, it is defined and fixed).

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

For example, when hiring an office worker, the employer may define his working hours as follows:

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

By setting a special mode of work for an office worker, it is implied that it differs from the normal, established in the organization, the procedure for distributing work according to all the parameters considered above. That is, the duration of work per day may exceed 8 hours a day and 40 hours a week, the end of the working day may be later than 18.00, and the beginning of the working day may be earlier than 9.00, and breaks for rest and meals may be in links are therefore provided at a different time and for a different duration.

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

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

a) for persons of administrative, managerial, technical and economic personnel;

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

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

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

In fact, a similar list is still used in determining the categories of workers for whom irregular working hours are allowed. So, for example, in the Rules for granting annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget, approved by Decree of the Government of the Russian Federation of December 11, 2002 No. 884. According to clause 2 of the Rules, the list of positions of employees with irregular working hours includes :

1) managerial, technical and economic personnel and other persons whose work during the working day cannot be accurately recorded (how much time spent CEO it is almost impossible to count on the development of a strategic development plan);

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

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

Despite the fact that such eligibility criteria are set as mandatory only for organizations financed from the federal budget, they are also successfully applied in commercial organizations- others have not been invented yet. But most often, the Lists of positions of workers with irregular working hours include workers who do not quite meet these criteria - heads of all structural divisions, ordinary specialists, etc.

The main requirement imposed by the legislation is the need to fix the list of positions of workers with irregular working hours "in a collective agreement, agreement or in the internal labor regulations of the organization." It is noteworthy that the last requirement is established only in relation to the positions of employees, and, consequently, the workers are “brought out” of the scope of Article 101 of the Labor Code of the Russian Federation.

The relevant paragraph of the Internal Labor Regulations may look, for example, as follows:

"... 23. Employees holding the corresponding positions, which are indicated in the List of positions of workers with irregular working hours (Appendix 1 to these Rules) are involved in work on irregular working hours."

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

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

Article 57. Content of an employment contract

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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

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

Many questions in practice, in particular during inspections, arise as to whether engagement in work during an irregular working day should be formalized by a written order of the employer or a verbal order is sufficient. After all, this moment was agreed with the employee when establishing such a regime for him and prescribing it in the employment contract.

Based on the analogy of the norms of the Labor Code of the Russian Federation itself, then the employer’s order should be expressed in the order of the head of the organization or other official(let's take the same business trip, the direction to which is carried out by order of the employer - which is issued in the form of an order, the form of which is provided for by the Decree of the State Statistics Committee of the Russian Federation dated 05.01. form T-9). At the same time, it is impossible not to take into account the fair question of employers - what then is the peculiarity of this regime, if the procedure for attracting to it is similar to attracting an employee with a normalized working day to overtime work. After all, the need for such a schedule with the employee was agreed in advance and justified when compiling the List. Any leader who has set such a regime, for example, to the chief engineer due to the need to monitor the operation of equipment and during the work of the evening shifts, will call the proposal to issue orders every time when it is necessary to control this, taking into account the fact that these are the normal duties for this position and are prescribed in job description this specialist.

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

To resolve the issues of the need for such work, it is possible, for example, to determine at least an approximate list of circumstances, upon the occurrence of which it is required to involve an employee or a group of employees to work in excess of fixed duration working day. Of course, it is impossible to list all the circumstances. But the generalization "in connection with the need for production" will not solve all the problems. Since the need to involve different workers depends to a large extent on the positions they occupy, it is advisable to specify the circumstances in which workers may be involved in work outside the normal hours of the day in the provisions on structural divisions or in that local act, which contains a list of positions of workers with irregular working hours.

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

If the order to involve in such work is drawn up in writing, the grounds for involvement should be indicated in the ascertaining part (preamble, if this is an order). If oral methods of engaging an employee in such work are used, then the motive (reason) for engaging the employee in work in excess of the normal working day for an employee on irregular working hours must also be expressed and substantiated orally in each specific case.

Since in this mode we are talking about the performance of work in excess of the established working hours, such involvement cannot be of a permanent nature. Article 101 of the Labor Code of the Russian Federation directly indicates that the involvement of workers in work outside the normal length of the day should be episodic. An episode (from Gr. epeisodion) means separate incident, accident, circumstance, or occurrence. “Episodic” means that the employer sometimes, from time to time, from time to time, involves an employee to work on irregular working hours.

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

It should be noted that the Labor Code of the Russian Federation does not impose restrictions on the number of "episodes" of involving an employee to work on conditions irregular working day. However, this does not mean that this freedom should be abused uncontrollably.

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

The specified norm of working hours applies to all modes of work and rest. That is, the mode of work for an employee with an irregular working day is set in relation to the normal mode of operation of the organization.

According to Art. 91 and 99 of the Labor Code, the employer is obliged to ensure that the hours worked by the employee are taken into account in any mode; the Labor Code does not contain any exceptions for irregular working hours.

Article 91. The concept of working time. Normal working hours

Normal working hours may not exceed 40 hours per week.

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

It is the employer's responsibility to ensure that each employee's overtime hours are accurately recorded.

Accounting and control of attendance and departure from work is carried out in the time sheet - unified forms T-12, T-13 in accordance with the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 N 1 "On approval of unified forms of primary accounting documentation for recording labor and its payment ". Since during an irregular working day, work is performed outside its normal duration, in practice such accounting can be carried out on the basis of data in the logs of the guard post, use electronic systems control of working time and other options convenient for the employer.

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

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

Article 101. Irregular working day

Irregular working hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside their working hours…

Article 99. Overtime work

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

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

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

Until October 6, 2006

After the entry into force of the Federal Law of June 30, 2006 N 90-FZ

Employees with irregular working hours are granted annual additional paid leave, the duration of which is determined by the collective agreement or the internal labor regulations of the organization and which cannot be less than three calendar days. In the event that such leave is not granted, processing in excess of the normal working hours, with the written consent of the employee, is compensated as overtime work.

Article 119. Annual additional paid leave for employees with irregular working hours Employees with irregular working hours are granted annual additional paid leave, the duration of which is determined by the collective agreement or internal labor regulations and which cannot be less than three calendar days.

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

Article 99. Overtime work

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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

Moreover, as mentioned above, these overtime hours must be taken into account by the employer. In practice, the issues of accounting for these clocks often arise when tax audits. Taking into account the fact that when this regime is established, an additional paid leave is also established for the employee, which is subsequently attributed by the employer to the cost price (costs), but, at the same time, the employer stubbornly continues to put the G8 in the timesheet for such employees, the question arises regarding the validity of establishing this compensation (and attributing it to the cost price) in the absence of such a need. After all, the employer's timesheet confirms that there were no overtime not only in a particular year, but also in previous years. The recognition of expenses as unreasonable leads, as a rule, to the requirement to attribute them to the profit of the organization.

That's why general recommendation, which you want to do, taking into account the requirements of Art. 91, 99 of the Labor Code, the employer is OBLIGED to keep records of all hours worked by the employee, including overtime - it is imperative to organize such records. Often, the main explanation for why an employer does not comply with these requirements of the federal law is that the accounting department will “get confused” if the employee has processing on the timesheet. But, firstly, the inconvenience of the work of an official in the company, of course, cannot be recognized as a good reason why the organization violates the requirements labor law, and secondly, the procedure for accounting for these hours, it is in the non-standardized mode of operation, can be organized outside the main time sheet (in an additional time sheet, magazine, etc.).

Ministry of Finance of the Russian Federation

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

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

In cases where, when concluding an employment contract with an employee, the production need for working in the irregular working hours is stipulated and all cases of work in excess of the normal working hours are documented by a local regulatory act, the expenses of the organization related to the payment of additional holidays for employees with irregular working hours are taken into account in for the purpose of taxation of profits as part of wage costs in accordance with Art. 255 of the Code….

Deputy Director of the Department of Tax and Customs Tariff Policy

S.V. Razgulin

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

Below, I give the difference in the mode of a normalized working day and an irregular one, based on which the meaning of this special regime is visible.

Parameter	Normal working day	Irregular working hours
Labor contract	Contains an indication of specific criteria for the working day: start, end, etc.	Contains an indication of specific criteria for the working day: start, end, etc. In addition, the non-normalized mode of operation is set.
Availability of an order (the initiator of involvement in such work)	By order of the employer (mainly in writing)	By order of the employer (mostly verbal)
Employee Consent	In some cases it is not required, in some cases it is required in accordance with Art. 99 of the Labor Code. Consent must be in writing.	Not required. The consent of the employee was obtained when the employee was given this regime in the employment contract.
Possible failure an employee from working in excess of the established norm on a certain day	In the cases provided for in Art. 99 of the Labor Code where the written consent of the employee is required - has the right to refuse.	It is debatable whether an employee has such a right when working in irregular working hours. In the vast majority of cases, the courts deny the employee the right to refuse such work.
Engagement to work in excess of the established duration	There must be a justification for the need for such work based on the restrictions established by Art. 99 of the Labor Code, that is, in certain cases with the written consent of the employee.	There must be a justification, but reasons not provided for in Art. 99 of the Labor Code.
Compensation for this work	According to the requirements of Art. 152 of the Labor Code: the first two hours in one and a half time, the rest in double.	According to Art. 119 of the Labor Code granting additional leave of at least 3 days.
Mandatory Compensation	For actual overtime hours worked	The presence and / or absence of work in excess of the norm does not change compensation in the form of additional leave. This compensation is established in the employment contract and does not depend on actual overtime (if their number in a calendar year does not exceed 120 hours)
Time tracking		Hours actually worked, including all overtime.
Overtime limitation.		No more than 4 hours two days in a row and 120 hours per annum
The right to daily rest of a fixed duration in the presence of overtime	The employee has the right under Art. 152 of the Labor Code, instead of paying for overtime hours worked, take another day of rest, restoring the balance of work time and rest time in the accounting period.	The employee does not have the right to take another day of rest (only by taking leave in the prescribed manner without saving wages)

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

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

• there is work that is irregular in nature or unstable in composition;
• it is impossible to establish the scope and content of the work before the start of its implementation;
• it is not possible to set a calendar date for the completion of work before the start of its execution;
• the completeness of the coverage of the work performed by the existing qualifications and composition is unknown official duties worker.

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

• specialists independently organize their work, determining the volume, content and deadlines for completing the task;
• specialists distribute working time at their own discretion, i.e., for the purpose of conscientious performance of their official duties for the organization and implementation of production or technological process, voluntarily go to work before the start of the working day or stay late after work;
• The working day of specialists can be divided into parts of indefinite duration, depending on the work, which is irregular in nature and unstable in composition.

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

Summarizing:

The employer needs:

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

2. Prescribe this regime and compensation from the employee in the employment contract.

3. Engage in work in excess of the normal working hours occasionally (from time to time, not constantly).

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

5. Keep records of actual hours of work, including overtime.

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

realities modern business are such that employees often have to stay late at work, come earlier, work without lunch. Employers, in such situations, are in no hurry to pay for processing, justifying themselves by the fact that the day for employees is irregular. Does an irregular day really allow the employer to save on overtime pay?

Introductory information

The Labor Code establishes clear limits on the working hours during which employees must perform their duties. As a rule, this is 40 working hours per week, which, with a five-day working week, gives 8 working hours per day. There are two ways to make an employee work outside of this time - by involving him in overtime work, or by introducing an irregular working day. The first method entails the obligatory payment of each hour of processing, and the total number of such hours is limited to 120 per year and four for two working days in a row (Article 99 of the Labor Code of the Russian Federation). But with regard to irregular working hours, such restrictions have not been established, which makes it very attractive to the employer.

What is an irregular day

Before proceeding directly to the consideration of issues arising in connection with an irregular working day, it is necessary to dwell on this concept itself. According to Article 101 of the Labor Code, an irregular working day is understood as a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

Simply put, employees can work in irregular working hours, whose job responsibilities are such that they cannot always be performed during working hours. As a rule, we are talking about employees whose work is related to customer service (after all, you can’t kick out a buyer who came 10 minutes before the end of the working day). Or about employees representing the interests of the company in other bodies or organizations (courts, tax authorities, etc.), whose work schedule may not coincide with the employee's work schedule.

But these are just examples. The Labor Code itself does not establish any restrictions on the contingent of employees who can enter an irregular working day (although there are still some exceptions, and we will talk about them below). Therefore, formally, both a cleaning lady and a leader of the highest rank can work in irregular hours.

What gives irregular day mode

The first and most obvious advantage of the irregular day regimen already follows from its definition, which we gave above - employees can be assigned to perform work not only during working hours, but also outside of it. But there are other benefits as well.

So, the introduction of an irregular day does not relieve the employee from the obligation to come to work on time, nor does it give the right to leave earlier. In addition, the irregular working hours make it possible to involve the employee in additional work at any time - both before the start of the working day and after its end. This is confirmed by Rostrud in a letter dated 07.06.08 No. 1316-6-1. The third plus of an irregular day is that you do not need to obtain his written consent every time to involve an employee in work outside the official working hours. Moreover, the employee does not have the right to refuse processing.

Finally, this method of ensuring the presence of employees at work is quite simple to design.

How to enter an irregular day

Article 101 of the Labor Code establishes the following algorithm for introducing irregular working hours in organizations.

First, you should draw up and approve a list of positions for which an irregular working day is established. However, some limitations must be kept in mind. So, it is impossible to include in the list of employees who, according to the law, have a reduced working day (disabled people, minors, employees studying at universities, etc.). It will not be possible to establish an irregular day for employees with whom there was an agreement on part-time work, fixed in the employment contract. But a part-time working week (i.e., a mode when an employee works not five days a week, but, for example, two or three) is not a hindrance to an irregular working day.

After this document is drawn up, all employees whose positions are indicated in it must be familiarized with the list under signature. Accordingly, if an employee is accepted for such a position, then before signing the employment contract, he must be familiarized with the list, which is fixed by his signature indicating the date and time of familiarization.

The next document in which you need to fix the condition on irregular working hours is an employment contract with an employee. And it must be done in without fail, since the mode of operation, which is different from the generally accepted in the organization, is prerequisite employment contract (Article 57 of the Labor Code of the Russian Federation). Accordingly, if a similar mode of operation is introduced for existing employees, then it will be necessary to draw up an additional agreement to the employment contract. This means that it is possible to introduce an irregular working day in an organization only with the consent of the employee. But in the future, as we have already mentioned, it is not necessary to obtain consent for each case of processing.

This completes the design of the very possibility of attracting an employee to work outside the working day.

How to issue an order

If we read article 101 of the Labor Code of the Russian Federation carefully, we will see that the employee does not have to work more than expected every day, but only by order of the employer. At the same time, the Code does not specify in any way how such an order should be drawn up. unified form not established for this case. It turns out that the legislation allows the oral form of the order.

However, in our opinion, an oral order can only be used if there is another document where processing will be recorded. The amount of time worked by each employee is recorded in the Timesheet (forms No. T-12 or T-13, approved by Resolution No. 1 of the State Statistics Committee of the Russian Federation dated 05.01.04 No. 1). But, according to the procedure for filling out these documents, approved by this resolution of the State Statistics Committee, if an irregular day is set for an employee, then work in excess of the established working hours is not reflected in the Time Sheet.

At the same time, part 4 of article 91 of the Labor Code imposes an unconditional obligation on the employer to keep records of the time actually worked by each employee. Therefore, whatever one may say, the organization will need to issue a document fixing the processing time. In principle, this can be a statement similar to the Timesheet. And the presence of such a document, in our opinion, may well replace the written order of the employer on the need to work outside of working hours.

At the same time, we would like to warn employers against abusing irregular hours. After all, Article 101 of the Labor Code says that employees can be involved in extracurricular work only occasionally. Therefore, if during the inspection the labor inspectorate establishes that such work was of a permanent nature, the employer may be required to pay for this work as overtime, and even fined for violation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Summarize. Irregular working hours are documented in the following documents:

- a list of positions approved by the head of the organization;

- an employment contract indicating an irregular working day;

- a record of the actual work of employees in irregular working hours.

Irregular day payment

Let us now turn to the issues of compensation for employees working outside the normal working day. Unlike overtime work, which is compensated with money, work in irregular working hours "threatens" the employee with additional days of paid leave. The duration of this leave is determined by the employer independently, but cannot be less than three calendar days (Article 119 of the Labor Code of the Russian Federation). Please note that this leave is due to all employees who hold positions included in the relevant list. At the same time, it does not matter whether they were actually involved in work outside of working hours or not.

Every year, more and more often, when applying for a job at an enterprise, one can come across such an interesting column in an employment contract as “non-standardized working hours”. Today we will talk about where and how it applies, under what conditions and positions work "overtime" is allowed.

What is meant by irregular working hours?

The concept of "non-standard working day" implies the involvement, if necessary, of an employee in additional employment time. Moreover, the date and duration of overtime hours are not negotiated in advance, as they are initially prescribed in the employment contract. Simply put, how your time and effort will be needed - you will be informed. As a rule, this point is discussed even before hiring - during an interview or questionnaire.

Working hours

The legislation of the Russian Federation obliges the employer to take into account the time worked by the employee. In 2004, a unified time sheet was adopted for each of their types of schedule.

Working hours with a standard work schedule

Article 91 of the Labor Code of the Russian Federation states that the normalized work schedule of a person should not exceed 40 hours a week. At uniform distribution working time and rest is obtained 5 weekdays for 8 hours. The exception is workers in hazardous industries - their norm is only 30 hours a week. Therefore, 6 hours a day.

Hours of work for non-standard work schedules

The number of hours of work with an irregular schedule is discussed when hiring and is prescribed in the employment contract. It is worth knowing that an irregular work schedule can only be a few times a week, but not systematic and everyday. Engaging an employee to work in excess of regular time can only be for work duties.

Hours of work with shift schedule

The shift schedule is used for the smooth operation of an organization or production and consists of several shifts. At the same time, employees in the company work in different time. Mostly, shift work consists of 8 or 12 hours in day and night mode. A 12 hour shift must have 1 hour lunch time and 10 minutes break every hour.

Regulations on the irregular day in the Russian Federation

Labor Code Russian Federation describes in detail all the conditions for working on an irregular schedule. This is done in order to clearly define the relationship between the leader and the subordinate. Special attention the legislation has given to the norms of being at the workplace without compromising health, this is indicated in the section "Working hours". It specifies how long the employee must be at the workplace.

Accounting for irregular working hours

According to the legislation of the Russian Federation, the employer is obliged to keep an individual record of time labor activity an employee who works irregular hours. To do this, it is necessary to create a journal-card for fixing hours worked, as well as register this item in the employment contract in the section "performance of duties". Also, a common scheme for employers is to conclude an additional agreement with an employee for a prescribed period of overtime.

Working conditions with irregular schedule

Many workers, under the pretext extra income, easily agree to an irregular work schedule. To avoid unforeseen disagreements, you should familiarize yourself in detail with the conditions of "overtime" work.

Vacation for irregular working hours

Unfortunately, regardless of the schedule of the working day, leave is equal for everyone - 28-30 calendar days. Exception - presence additional agreement, which specifies the exact number of days of rest due to the employee. But depending on the internal regulations of the organization, extra days for the main holiday.

Accrual of additional leave to employees of irregular schedule

The calculation of hours worked by an employee is a rather uncontrolled process. In this case, the legislation can make up for the "inconvenience" of the work schedule only by accruing additional vacation days. The exact number of additional days is not specified in the Labor Code - it depends on the internal regulations of the organization. As a rule, from 3 to 7 days are added to the main vacation, depending on the field of activity of the company. Also, additional days of rest can be accrued for blood donation during working hours or work during holidays. If in the first case you are protected the federal law, then in the second - everything is at the discretion of the management and the internal rules of the company.

Extra days for overtime hours

If you work according to a standard work schedule, but occasionally perform overtime hours, you are also entitled to additional days off. Moreover, it is not necessary to add them to the vacation, you can take a few days of rest once a quarter. You can also claim compensation for them. Although most organizations prefer to immediately pay the amount from processing, rather than paint everything in the report card and report. As a rule, each hour of overtime work is calculated in double the equivalent.

Processing Compensation

More than 20% of employees prefer holiday compensation instead of a well-deserved rest. It can also be taken for accrued additional days from processing. The amount of compensation is calculated based on the cost of one day of work.

Pay for irregular working hours

The payment for an irregular working day is the sum of the 8-hour work schedule and double payment recycled hours. The disadvantage of this calculation is the presence of a salary “in an envelope”. Simply put, if you are officially employed for one salary, but you get much more, the calculation of the cost of a worked hour can come from wages from a piece of paper. In this case, one can only hope for the good faith of the employer, since the law here does not protect the employee.

Payment for irregular work on public holidays

Often, employers neglect the concept of "rest on weekends and holidays." According to the Labor Code of the Russian Federation, without the written consent of the employee, the manager does not have the right to force him to work on "red" calendar days. Also, the accrual of payment for an irregular work schedule on holidays occurs at a double rate, for piecework workers - at double rates. To the above, if the working day falls on a weekend or holiday at night, then 20% is added to the double rates. Recall that the concept of "night hours" in the Labor Code is considered the time from 22:00 to 06:00.

irregular working hours are paid higher than the standard

List of positions with irregular working hours

There are no officially prescribed positions in which employees are required to work overtime - as a rule, this nuance discussed orally. But practice shows that some unspoken pattern still exists.

Management team

As a rule, the leadership of any middle and large enterprise has an unspoken irregular day. This is due to increased responsibility and a large staff - various reports, checks are not always possible during the main working hours. Overtime business hours on public holidays must also be paid at double the rate.

Personal assistants and drivers

Opening hours personal assistants and drivers are directly dependent on the leader. Often this moment is discussed immediately before hiring, but is not prescribed in the Labor Code. In addition to overtime hours, personal employees have unscheduled business trips or long trips, the repayment of which is negotiated separately.

civil servants

By law, any civil servant has a standard 8-hour day with a lunch break, but in practice things are not always so “sweet”. For example, bailiffs can leave according to the inventory of property at any time of the day, or employees of the Ministry of Internal Affairs, including forensic experts and investigators, often work above the norm. For example, a professional urgent examination is needed at a crime scene, but there are no night specialists on duty. The downside of the irregular work schedule for civil servants is that working hours can be absolutely at any time of the day or night.

Doctors

Irregular working hours often occur among workers in the medical field. Surgeons, anesthesiologists, operating room assistants, exactly the number of additional hours that this or that situation requires. For example, when operations are delayed due to unplanned situations or a long wait for the results of the examination.

piecework employees

About 70% of employees working on piecework wages work irregular hours. As a rule, this is an exclusively voluntary desire, since the final remuneration directly depends on the amount of work performed. Therefore, donating own time and forces, the specialist receives a higher salary.

Who can not set an irregular work schedule?

Following the prescription Russian legislation according to TC 97, 99 and 101, an irregular work schedule can not be established for all categories of workers. Additional working hours may not apply to:

Employees with disabilities

Employees with disabilities of groups 1 and 2 are not allowed to work on an irregular schedule. Thus, the state protects these workers from the unscrupulous attitude of managers and workload to the detriment of health.

Pregnant women

Throughout the entire period of pregnancy, as well as upon reaching the age of 3 years of the child, it is forbidden to work abnormally. An exception is a written agreement of an employee for admission to overtime hours.

Minors

The permitted age for work under the Labor Code in the Russian Federation starts from 14 years. During this period, a minor employee has the right to work only with the written consent of the parents and no more than 5 hours a day. Upon reaching the age of 16, an employee can switch to a full-time job, but apply in relation to this person irregular schedule is prohibited.

Specialists in training

Students undergoing vocational training or specialists aimed at advanced training cannot work overtime. The maximum allowable working time of such an employee is no more than 8 hours for 5 days. This rule is observed for the optimal distribution of working time and rest, without negative consequences for the body.

Pitfalls of an irregular work schedule

Unfortunately, in 40% of cases, employers do not comply with their obligations regarding irregular working hours in full. And whatever the law prescribes, the accounting and legal system of the organization is based on "paper" figures. Most of the employees are forced to put up with the proposed conditions under the influence of good earnings or bonus bonuses. For example, in order to reduce the amount of taxes paid, the company employs an employee for a minimum amount equal to one subsistence level in the region. The minus for the employee is "insignificant" - meager pension contributions, but the company will retain up to 18% of its annual profit. And in general, for a long time, both parties - the employer and the subordinate, "get along" with each other in business terms. Until it comes to the moment with an irregular work schedule and the corresponding payment for them. In this case, even when contacting state inspection labor, the employee will not be able to return in full their "hard-earned money".

In this case, there are two solutions - either to conclude a unified agreement with an annex, where the obligations of both parties are clearly spelled out, or to trust the good reputation of the company and work on the word of honor.

This example of an unfair scheme of work of some organizations does not characterize the majority of enterprises, but only a few. But it's worth having a real idea.