What to do with accumulated and unused time off upon dismissal - payment and compensation

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Time off is time for additional rest, which, by mutual agreement of the parties, can be compensated to the employee in monetary terms. At the end of the employment contract, a dispute often arises about unused rest days. Indeed, the relationship between employer and employee is regulated by the Labor Code, which does not contain the concept of “time off”. The more acute the question arises: can unspent days of rest required by law be paid for and how this should happen.

What to do if there are unused vacation days left upon dismissal?

Russian legislation establishes a clear procedure for compensation for hours worked in excess of standards:

• overtime work: Article 152 of the Labor Code explains that the employee has the right to choose between monetary compensation and additional unpaid rest, equal in duration to the time spent on work;
• on holidays and weekends: Article 153 guarantees double or single payment, but with the addition of unpaid hours or days of rest;
• overtime for shift workers is paid within one average daily salary for each day worked, Article 301;
• donors are paid for the day of medical procedures and the next one, Article 186.

But what if overtime has not yet been used or paid, and the employee decides to quit? Documented overtime will not cause controversy - the administration is obliged to provide the employee with days off or pay overtime in accordance with current standards. It is more difficult with verbal agreements. Here everything will depend on the integrity of the manager and the personal relationship of the employee with him.

Do vacation days expire upon voluntary resignation?

Dismissal implies the simultaneous termination of all relations between the employee and the employer. Accordingly, a full settlement is made between the parties, after which neither of them will bear any material obligations to the other.

If, during the period of fulfilling labor obligations, an employee has accumulated overtime, and it was not used until he was released from his position at his own request, an attempt must be made to use it so that it does not “burn out.”

As a rule, upon dismissal, the employer forces you to work for fourteen days, which is used to find a new candidate to replace the outgoing one. This period can be used to pay off overtime.

Delay in payments

Let's start with what we think is the simplest thing. Many employees complain that there are periods at the enterprise when payroll becomes the final chord in the payment process for a certain period (and it’s good, if for a certain period!). But to calculate does not mean to pay. The indignation of state employees can be understood: salaries, even if delayed for good reasons (the difficult financial and economic situation of the enterprise, etc.), will come someday, but they want to eat now.

But if you could only imagine how many people limit themselves to this very indignation. But the legislative point of view on this matter has a slightly different character.

The regulations governing labor relations between managers and subordinates clearly indicate that delays in basic payments (regardless of whether the employer is guilty or not) must be compensated for each day of delay. What does it mean?

That as a result, you are required to “add on” a percentage of the penalty to the amount of your due salary.

Don’t be afraid to ruin your relationship with management by insistently demanding what is provided by law. Employers don’t bother when they don’t pay you the compensation required by law. “Understanding” and “getting into the situation” is also not worth it.

Today you will be deprived of these compensations, tomorrow - an incentive voucher (even if not necessarily a voucher, but another type of incentive for conscientious work, prescribed in the employment contract along with bonuses). And the day after tomorrow you will be left without other state-provided payments and benefits. No, everything must be within the legal framework. Without exception.

How are unused vacation days paid upon voluntary dismissal?

Whether an organization will pay for unused time off upon termination of an employment relationship depends on several reasons:

• Which option will the employee choose - monetary compensation or the actual use of the days off due to him;
• The reason that was the basis for additional rest;
• Does the organization keep documented records of overtime and time off provided to employees?

Do I have to pay for time off when leaving at my own request? Russian legislation does not provide a specific answer to the question. But it must be taken into account that, unlike a layoff, when an employee stops fulfilling his work obligations on the initiative of the manager, in this case the employee has time to both think about the decision and take measures to use the accumulated days off.

Is time off paid for work on weekends and holidays according to the Labor Code of the Russian Federation upon dismissal?

According to the Labor Code, employment on holidays and other days off is prohibited. Under special circumstances - emergencies at the enterprise, accidents and their prevention, disasters and the elimination of their consequences - it is allowed to involve employees in work with their written consent.

Working on weekends is considered overtime work, which must be paid twice, or they may offer single pay with additional days of rest. What to choose is up to the employee himself. Upon dismissal, unrealized time off may be lost, so they must be used in a timely manner.

Normative base

The first thing that those who are going to understand the topic of whether a day off is paid is that they will not find this concept anywhere in the Labor Code. Time off, by mutual agreement, is a free day given to an employee during a period when the company's schedule assumes normal employment. In other words, if a company operates from Monday to Friday, then absence from work on any weekday, agreed upon with management, will be considered a day off. If exemption from work on this day is not agreed upon before its onset, then it will rightly be called absenteeism.

To be fair, it should be noted that although there is no concept of time off in the Labor Code, the term “additional day of rest” is often used. By mutual agreement with the employer, you can get it for:

• Work on state or regional holidays and non-working days, art. 153 TK;
• Overtime work (both with a 40-hour week and according to a summarized schedule), Art. 152 TK;
• Voluntary donation, art. 186 TK.

If, for some personal reason, a person needs free time during the work week, then this is also called time off. In such a situation, the employee may not have a legal right to an additional day, but there are still options to get a day off on weekdays:

• You can ask for a few days to offset the duration of the next main or additional leave, Chapter 19 of the Labor Code;
• If the paid days in the worked period have already ended, then the employer may agree to provide days without pay, Art. 128 TK.

And if the method of organizing a free day is not particularly concerning to an ordinary employee, then the issue of paying time off for working on weekends and holidays can become truly relevant.

Mandatory right to uncategorized leave

No one can argue with the statement that an offer to work longer is expressed by management more persistently than a willingness to let go from work. But, when the working hours are already recorded in the time sheet or there are unpaid rest days for previous periods, it is much easier to force the employee to heed his requests. Free days requested “in advance” are more difficult to obtain. The argument may be some urgent or valid reason indicated by the employee in his application. This equally applies to the situation when an employee asks to be given leave at his own expense. In the latter case, however, circumstances may arise when the employer is disarmed due to the status of the person who applied or the nature of his problem:

Do not forget that an additional option for obtaining free days may be contained in the company’s collective agreement.

Paid and unpaid time off

Those who intend to ask for an extra day from their employer need to clearly understand that the question of whether time off is paid is not entirely correct. There are several options for approaching financial security:

• Days of absence do not imply payment at all, Art. 128 TK;
• Failure to appear implies that the hired person retains the average salary under Art. 167, chapters 19 and 28 of the Labor Code;
• The time off is not paid, since it was chosen by the employee himself as a way of compensation for working overtime or on days off, Art. 152 and 153 TK.

For those who ask to give him a day from the rest periods from Chapter 19 of the Labor Code, you need to remember that you can’t “pinch off” from every vacation. If the provision of time off from work is timed to coincide with a specific event, then taking a piece at an arbitrary time will not work. For example, it is simply impossible to ask for a day of student leave in advance, because the right to it appears only after receiving a call and an examination certificate of academic performance (Chapter 26 of the Labor Code). From there they also extract information about the period, duration and method of payment for this time.

The employer is obliged to provide time off on the day specified by the employee only if the employee was previously involved in overtime work. If free time off without good reason is requested by employees who do not belong to a preferential category under Art. 128, then the employer has every right to refuse their request.

How to get money for unused time off when leaving the Ministry of Internal Affairs at your own request?

Order No. 961 of the Ministry of Internal Affairs of the Russian Federation dated October 19, 2012 allows the involvement of department employees in overtime work with the subsequent provision of additional days off. Order No. 638 of the same ministry establishes the procedure and amount of monetary compensation for serving at night and on weekends.

Employees with irregular working hours do not have the right to count on financial compensation; they are only entitled to additional leave. With a shift work schedule, work on weekends and holidays is not paid; these employees have to be content only with paid rest. Thus, employees of the Ministry of Internal Affairs can use time off in the same way as other civil servants: they need to write a report addressed to higher management indicating the basis for granting the right to additional rest.

Upon dismissal from the ranks of the Ministry of Internal Affairs, employees are subject to the same rules and regulations as civil servants. This means that unused time off can easily go to waste if it is not taken on time. Compensation in monetary terms is also not paid here. Therefore, before submitting a letter of resignation, it is recommended to “pay off” all accumulated additional days off, so as not to create unnecessary problems for yourself or management.

conclusions

Since the beginning of 2012, the concept of “time off” has ceased to exist in Russian law. Today it is considered outdated and is absent from labor law. Despite this, today an additional day off is usually called time off.

In the Russian Federation there is no clear legislative framework for regulating monetary compensation for unspent weekends. This actually gives each manager a personal choice: to do the right thing by making all necessary payments to the resigning employee, or to refuse, preparing for a possible meeting in court.

The employee turns out to be dependent on the employer: accept his offer to simply “rest” the allotted time off, or begin a long legal battle, paying many fees, spending a lot of nerves and effort, when it is not known who will be right and who will be wrong.

The best and legal way to resolve the issue is to take a day off instead of going to court if the manager does not cooperate. Statistically, the amount expected to be received for time off is not enough to go to court for it.

Correctly filling out a resignation letter during vacation

You need to apply for resignation during vacation according to the general procedure. There are no special requirements for this category of documents. There is no need to indicate in the text that the employee wants to count the vacation period towards the working time. These provisions are subject to additional orders.

There are 2 ways to apply for voluntary leave that a person on leave can use:

1. Write an application for “leave with subsequent dismissal.” This must be done before going on vacation, simultaneously with the application for leave.
2. Write a letter of resignation without interrupting your rest time.

If the vacation period completely coincides with the working time, the required documents must be issued and payments must be made on the last working day before the vacation. Although the date of completion of work in the organization will be considered the end of the 2-week period.

An application to the HR department can be submitted in one of the following ways:

• personally;
• sent by mail;
• transferred through a legal representative with a notarized power of attorney;
• sent to the organization’s email, if such an option is allowed by the company’s internal rules.

To avoid the emergence of controversial situations with the calculation of working time, you should draw up an application in 2 identical copies. One will remain in the HR department, the second employee will take it for himself. The employee’s copy must bear the date of delivery and a mark indicating that the employer accepted the application - a seal, stamp or signature of an employee of the HR department.

If the application is sent by mail, it should be sent by registered mail with return receipt requested.

The application shall indicate:

1. Details of the parties: data of the legal entity and personal data of the employee.
2. Requests are made to dismiss from a position (the most common reason is Article 77 of the Labor Code of the Russian Federation - at one’s own request).
3. Desired date of dismissal.
4. Date of compilation and personal signature of the applicant.

Please note that in some cases, an employer may legally refuse to provide an employee with leave for the period of work.

For what reasons can you quit your job without working?

Dismissal is the termination of the employment relationship between the parties.

It may be dictated by the following reasons:

• agreement of the parties;
• the desire of the employee;
• violation of labor discipline by an employee or commission of other guilty acts;
• termination of the enterprise's activities;
• other reasons.

According to general rules, an employee who decides to quit must notify his immediate employer of his decision in advance. The law requires this to be done no later than 2 weeks before the expected event. For example, to quit on the 17th of the current month, the application must be submitted no later than the 3rd. That is, after writing the application, the employee must continue to conscientiously perform his duties as provided for in the job description for another 2 weeks. This period is usually called the working out period.

During this time, the organization must find or train a new employee, and the worker has the right to think about and change the decision made. The right to withdraw a resignation letter remains throughout the entire period of service.

If a working citizen withdraws his application during this period and decides to continue his career in the organization, he does not have the right to refuse. Provided that no candidate has yet been found for his position.

The mandatory period of service can be canceled or reduced by personal agreement with the employer.

In addition, there is no need to work out in the following cases:

1. The employee is on probation. In such a situation, you can inform about leaving 3 working days in advance.
2. Termination by an organization of its activities (reorganization, liquidation).
3. Reduction of company staff.
4. The working period falls during sick leave or vacation. Upon dismissal, any vacation on which the employee goes is included in working time.
5. The person is employed under a fixed-term employment contract (seasonal or temporary), the validity period of which is 2 months or less.
6. Repeated violation of an employee’s rights provided for by the Labor Code of the Russian Federation, an agreement or other legal acts containing labor law norms. For example, delays in wages, refusal to pay for overtime. This fact must be recorded by a labor dispute committee (LCC), a court or a labor safety inspectorate.
7. The employee was about to resign due to retirement.
8. The employee belongs to the category of working pensioners. If he quits for the first time after retirement.
9. The reason for dismissal was enrollment in an educational institution.
10. The employee belongs to the category of parents with many children (has at least 3 dependent children who have not reached the age of majority).
11. Transfer of service to another region, city or country of the employee's spouse.

Pregnant women and persons on maternity leave before they reach the appropriate age (1.5 or 3 years) are also required to be dismissed without work.

In addition to the listed cases, you will not have to work off if the reason for dismissal is the person’s inability to fully fulfill his professional duties due to circumstances beyond his control.

These include:

• permanent disability;
• doctors’ recommendations about changing place of residence;
• the need to care for a close relative with a serious illness or disability.

The list of personal circumstances on the basis of which an employee may be released from work is not limited by law. The main condition is to provide documentary evidence of the need to quit urgently.

In addition to cases of reducing the working time, the law provides for the possibility of increasing its period to 1 month. This happens if a person holding a leadership position in the organization (chief accountant, director) resigns. The extension of the term is associated with the obligation to transfer official powers.

If an employee voluntarily decides to reduce his working time and does not show up at work, this will be regarded as absenteeism. This fact will be reflected in the work book: the reason for dismissal will be stated not “at will” (Article 77 of the Labor Code of the Russian Federation), but “gross violation of official duties” (Article 81), which will negatively affect the citizen’s future career.