How to legally transfer employees to part-time work

When can I switch to part-time?

Options for registering a part-time employee actually represent a transition to part-time work. There are several algorithms, depending on who becomes the initiator and for what reasons the procedure is carried out.

What is the procedure for transferring an employee to part-time work?

Consultation provided on March 30, 2018

The employee is transferred to part-time work on a permanent basis, and the rate is reduced.

What is the procedure for transferring an employee to part-time work?

First of all, we note that labor legislation does not define such a concept as a rate. Based on the meaning usually given to the term, working in a position during normal working hours is considered full-time work. Accordingly, if an employee works for part of the rate (0.75, 0.5, 0.25, etc.), then it is assumed that he must work a proportional part of the standard working time, that is, work part-time in this position or part-time work. Our opinion is indirectly confirmed in the letter of the Ministry of Labor of the Russian Federation and the Ministry of Science of the Russian Federation dated August 23, 1994 N 1623-RB “On the establishment of additional payments for the academic degrees of Doctor of Science and Candidate of Science.” Based on this, reducing the rate means establishing part-time work for the employee.

Within the meaning of Art. 100, art. 57 of the Labor Code of the Russian Federation, working hours are a condition of the employment contract. Article 72 of the Labor Code of the Russian Federation provides that changes to the terms of an employment contract determined by the parties are allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation.

Article 93 of the Labor Code of the Russian Federation allows the establishment of a part-time working day (shift) or a part-time working week by agreement between the employee and the employer, both upon hiring and subsequently. Consequently, if the employee agrees to transfer to part-time work, the establishment of such a regime is possible. The corresponding changes must be formalized by a written agreement of the parties to amend the employment contract (Article 72 of the Labor Code of the Russian Federation). Since the employee in this case, by affixing his signature to the agreement, confirms that he is familiar with its terms and agrees with the changes provided for by them, and additional agreements to the employment contract within the meaning of Art. 61 of the Labor Code of the Russian Federation come into force from the moment they are signed by the employee and the employer, unless otherwise directly follows from their content, to the extent that prior notification of the employee about the upcoming change to the employment contract is not required in this case.

Issuing an order establishing part-time work in this situation is also not necessary. However, on the basis of this agreement, in accordance with the rules of office work adopted by the institution, it is possible to issue an appropriate order in free form. The fact of establishing part-time work is not reflected in the work book.

Regarding the establishment of a part-time work schedule for an employee (reduction of wages) unilaterally, we note the following.

Article 74 of the Labor Code of the Russian Federation allows for the possibility of changing the terms of an employment contract (with the exception of the labor function) at the initiative of the employer in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved. The employer is obliged to notify the employee in writing of such changes, as well as the reasons that made them necessary, no later than two months in advance*(1). If an employee does not agree to work under new conditions, the employer is obliged to offer him in writing another job available in the given locality (as well as in other localities, if provided for by the collective agreement, agreements, employment contract), corresponding to the employee’s qualifications, or a vacant lower-ranking position (lower paid). work) that the employee can perform taking into account his state of health. If there is no such work or the employee refuses the offered work, the employment contract is terminated in accordance with clause 7 of part one of Art. 77 Labor Code of the Russian Federation.

At the same time, in accordance with part five of Art. 74 of the Labor Code of the Russian Federation in the case where the reasons specified in part one of this article may lead to mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations, introduce a part-time working day (shift) and (or) part-time working week for a period of up to six months.

In our opinion, this norm should be considered as special in relation to the norm of part one of Art. 74 of the Labor Code of the Russian Federation not only in terms of the procedure for changing the working hours, but also in terms of the relevant grounds. The given structure of Art. 74 of the Labor Code of the Russian Federation allows us to conclude that, in general, the legislator does not allow the possibility of the employer unilaterally reducing working hours, even in the presence of changes in organizational or technological working conditions. A corresponding change in working hours is possible only if the conditions specified in part five of Art. 74 of the Labor Code of the Russian Federation and only in the order given. This limitation of the employer’s right to change the terms of the employment contract in question also correlates with the established part of the second article. 22 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with work stipulated by the employment contract. It seems logical that in this regard, additional restrictions are established for the employer on his ability to change the terms of the employment contract on the nature and volume of work assigned to the employee (that is, the labor function and duration of working hours) in comparison with cases in which it is possible to change other conditions at the initiative of the employer employment contract.

Thus, we believe that a reduction in the working time (rate) of an employee is possible only if two circumstances are simultaneously present:

— changes in organizational or technological working conditions (changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production);

— possible consequences as a result of changes carried out by the employer, such as mass layoffs of workers.

Similar criteria for assessing the possibility of establishing a part-time work schedule for an employee at the initiative of the employer are also proposed by the courts (see, for example, the ruling of the Nizhny Novgorod Regional Court dated July 3, 2012 N 33-4179/2012, the ruling of the Krasnoyarsk Regional Court dated July 5, 2010 in case N 33-5002 /2010, ruling of the Oryol Regional Court dated 02/06/2013 N 33-296, ruling of the Irkutsk Regional Court dated 05/27/2013 N 33-4115/2013).

This conclusion is indirectly confirmed by part six of Art. 74 of the Labor Code of the Russian Federation, according to which, if an employee refuses to continue working part-time (shift) and (or) part-time work week, the employment contract is terminated in accordance with clause 2 of part one of Art. 81 of the Labor Code of the Russian Federation with the provision of appropriate guarantees and compensation. Thus, although the above rule does not contain any reservations regarding the order in which the employee was offered to continue working part-time, if he refuses such work, the employee is subject to dismissal due to reduction. This also allows us to conclude that the legislator does not envisage any other possibility of introducing a part-time working regime, except to prevent mass layoffs of workers, that is, under part five of Art. 74 Labor Code of the Russian Federation.

The foregoing allows us to conclude that the employer can unilaterally change the terms of the employment contract on the duration of working hours only in the presence of the above-mentioned circumstances and only in the manner provided for in part five of Art. 74 Labor Code of the Russian Federation.

If part-time work is planned to be permanent, the employer’s actions in such a situation do not meet the described criteria. In our opinion, in this case, changing the terms of the employment contract with the employee regarding the duration of working hours at the initiative of the employer is impossible. The employer has the right to change the employee’s working hours (transfer from full-time to part-time, reduce the length of the working day and (or) working week) only with his consent.

So, if an employee objects to the establishment of part-time working hours, and the grounds for introducing part-time work without his consent, provided for in Art. 74 of the Labor Code of the Russian Federation, no, then the employer does not have the right to change the terms of his employment contract by reducing the working hours of this employee.

However, we draw your attention to the fact that this position is our expert opinion.

Prepared answer:

Expert of the Legal Consulting Service GARANT

Candidate of Legal Sciences Shirokov Sergey

The answer has passed quality control

How to transfer to 0.5 rates at the request of the employee

An employee may experience circumstances that prevent him from working for 8 hours. Article 93 of the Labor Code of the Russian Federation makes it possible to work part-time. The transition to such an algorithm occurs with the consent of the parties. If the change is related to circumstances that have arisen for the employee, he must fill out an application.

The algorithm is like this:

1. The employee writes a statement and sends it to the personnel department.
2. The HR department receives approval and resolution from the head of the enterprise.
3. The personnel department forms an agreement to the employment agreement with new conditions and prepares an order.
4. The agreement is signed by the employee.
5. The agreement is signed by the employer, then a sample order for transfer to 0.5 rates at the main place of work is drawn up.
6. The employee gets acquainted with the order and signs it.

Who can work short-time hours

Art. 92 of the Labor Code establishes 3 corresponding categories of employees who are provided with a reduced regime.

It applies to men and women who have a disability of the 1st or 2nd group established in accordance with the law. The duration of weekly work should not exceed 35 hours. If this status arose after employment at the enterprise, the terms of the employment contract must be brought into compliance with the law upon presentation by the employee of a supporting document.

Another group are minors. The law divides them into 2 categories: under 16 years of age and under 18 years of age. If the former are supposed to work no more than 24 hours a week, then the latter can work up to 35 hours a week inclusive.

This duration is reduced by half if such an employee receives education at the same time.

There are specifics regarding earnings. Art. 271 of the Labor Code provides for payment for the work of minors based on the time actually spent at the workplace. This is the only exception to the rule about equal earnings with other similar personnel.

Order of the Ministry of Health N 588n establishes the method for calculating the daily shift. The employer must proceed from a 5-day week and divide the maximum established in Art. 92 TK for this number.

How to transfer to 0.5 rates at the initiative of the employer

The employer’s initiative is related to the need to strictly adhere to the provisions established by Article 74 of the Labor Code of the Russian Federation.

The steps are:

1. Warn each employee in writing 2 months before the start of the changes, indicating their reason.
2. If the person agrees, translate using the translation algorithm at the request of the employee.
3. If the person does not agree, offer another job (all suitable rates) based on his qualifications and health. If there are no vacancies or the employee does not agree, dismiss on appropriate grounds. Documents must be submitted in writing.

As a result, the list of documents with this algorithm consists of:

• written notice;
• additional agreements;
• order.

What risks might there be?

If you do not reduce the working week for employees who are required to do so by law, you face liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation:

• from 1 to 5 thousand rubles. — officials or individual entrepreneurs;
• from 30 to 50 thousand rubles. - legal entities.

If reduced working hours are not established for women working in the Far North or in rural areas, they will have to pay for overtime work as overtime - at double the rate (clause 13 of the Resolution of the Plenum of the Supreme Court of January 28, 2014 No. 1).

If the conditions for reduced or part-time working hours are not specified or incorrectly reflected in the employment contract, the State Labor Inspectorate may bring administrative liability under clauses 4 and 5 of Art. 5.27 Code of Administrative Offenses:

• from 10 to 20 thousand rubles. — officials or individual entrepreneurs;
• from 50 to 100 thousand rubles. - legal entity.

How to write an application for switching to 0.5 rates

The employee submits an application to the employer outlining a request to switch to part-time work. There is no established template, you can write it in free form. The structure of the document could be like this:

• indication in the header of the information of the employer and employee;
• By ;
• presentation of the text indicating the date of transfer to part-time and its reasons;
• at the end of the text - signature, date of registration.

Payment

Wages for reduced working hours are usually paid in proportion to the time worked. That is, if an employee works 2.5 days a week instead of 5, then his salary is reduced exactly by half. In the time sheet, all non-working days are marked with the code “B”, which means “day off”.

From the moment part-time work is established, engaging an employee to work at unspecified hours will be considered overtime. Such work must be paid double or triple (according to Labor Code standards). This is clearly stated in Article 152 of the Labor Code.

In short, when drawing up and signing an order establishing part-time work, there are many nuances that should be taken into account.

How to create an order to switch to 0.5 rates

An institution can develop a sample order to change an employee’s rate, since the legislator has not established a single unified form.

The administrative act must be drawn up in writing. The document establishing a part-time working day for an employee (the wording of Article 74 of the Labor Code of the Russian Federation) must contain mandatory details.

A sample order for transfer to part-time at the initiative of an employee or employer must contain:

• a header that includes information about the name, address, TIN of the institution;
• name of the order;
• text stating the reasons and grounds for issuing the document;
• a list of orders related to the new work and rest regime, indicating the date of transfer, new duration of work, payment with the wording “in proportion to the time worked”;
• manager's signature;
• a note about the employee's familiarization.

Statement

The form for the document is set arbitrarily. The employee can write it with his own hand or using typewritten technology. Restrictions on this matter are not reflected in the law. You will need to indicate the details of the person requesting the transfer and his position. You need to specify the date from which the employee wants to apply part-time work and the grounds for establishing this regime. You will need to indicate the specifics for this time.

The beginning and end of such a regime are clearly stated. It is necessary to reflect the length of the day and week during which the person works. When the reasons for the transfer are exceptional, you will need to attach documents confirming this to the application. For example, a conclusion issued by a medical organization.

If the transfer is agreed upon with the management of the enterprise, then the participants in the labor relationship adjust the contract. An additional agreement must be drawn up and signed. Then an order is issued to apply a specific regime. In any situation, the application must be addressed to the head of the enterprise. When the document is drawn up by the director, it is sent to the founders of the company.

How to draw up an additional agreement on the transition to 0.5 rates

An additional agreement is a document establishing a list of specific changes to the employment contract. In accordance with Art. 72 of the Labor Code of the Russian Federation, it is drawn up in writing. When determining the operating mode under new conditions, the agreement must include information:

• about the number of days of work during the week;
• number of hours of work;
• start and end times of the working day;
• rest period;
• validity period;
• terms of payment for work.

The document is prepared in 2 copies and signed by the employee and the employer.

What is shortened working hours?

The law recognizes the right to work. At the same time, easier working conditions are provided for certain categories of personnel. One of them is reduced working hours. The basic rules governing these categories, as well as the registration procedure that distinguishes this time, are provided for in Art. 92 TK.

To understand this concept, it is necessary to establish the characteristics that distinguish the normal duration of daily work. The requirements for it are established in Art. 91 TK. According to this norm, the maximum working week is 40 hours. Order of the Ministry of Health N 588n specifies these conditions. The normal duration of a daily shift cannot exceed 8 hours.

How to calculate salary and vacation pay

Payment for labor is made in proportion to the time worked (or depends on the volume of work performed). Rostrud in Letter No. 1619-6 dated 06/08/2007 explains: if an employee is assigned a part-time work schedule, the salary is reduced regardless of the established system (salary or rate).

To calculate the amount of payment for vacation when establishing average earnings, the average daily earnings are used. Average earnings are calculated by multiplying the daily average by the number of days in the period for which payment is due.

A change to an employee's working hours during the calculation period does not matter.

Peculiarities

Employment rights for part-time workers are the same as for the rest of the state. They can expect shorter day lengths in the days leading up to holidays. The reduction applies to one hour. For persons with disabled children, additional days off are provided.

The regulation stipulates that the length of service includes periods when a person worked part-time. Includes days when the employee worked in hazardous conditions for no more than half the hours for standard schedules. This applies to additional holidays. When the position that a person fills is classified as irregular, leave is taken out during work for an incomplete week. You need to work full time.

Other types of schedules suggest that a person cannot work more than a set time. A person caring for children under the age group of one and a half years can work part-time or at home. They are entitled to payments. This is reflected in the law. Sick leave is paid according to the general rules.

Let's sum it up

• Establishing a part-time work week at the initiative of the employer is allowed only if a change in organizational or technological working conditions could lead to mass layoffs of workers.
• A reduction in working hours due to the coronavirus pandemic can be done by agreement of the parties. This solution involves reducing the cost of wages to employees, since in this case the salary is calculated in proportion to the time worked. However, this does not apply to those employees who are required to have their working hours reduced by law.

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