Employees of most Russian companies are faced with the need to stay late at work to carry out instructions from their superiors, but this overtime is not always paid, although the Labor Code of the Russian Federation clearly regulates the procedure for payment or compensation for work performed overtime or on weekends and non-working holidays.
Legal instructions 9111.ru will tell you what to do if your boss forces you to work more than the allotted time.
Employer market
The economic crisis, the imminent approach of which is indicated by both forecasts of authoritative experts and objective indicators, for example, falling oil prices and the depreciating ruble, will inevitably affect the labor market. If, in conditions of economic growth, there is competition between companies for good workers, who are lured with high salaries, bonuses and bonuses, and labor legislation is strictly observed, then during a crisis the situation changes radically. There is already fierce competition between specialists for a job, and those who have it are ready to do anything to keep it, including constantly working overtime. Workers are becoming more accommodating, employers are becoming bolder. This is an objective process.
However, economic difficulties do not mean that an employee should not know his rights, because it may turn out that one motivated (with reference to an article of the law) refusal of unpaid overtime work will be enough to be paid for this work next time. According to experts, employers are pushed to violate labor laws, among other things, by the tacit consent of employees. It’s good if this silence is well paid, but in most cases it is due to basic ignorance of one’s rights.
Overtime work
Work that is performed at the initiative of the employer after the end of the normal working day (8 hours a day with a 40-hour work week) is called overtime. In this case, the employer’s initiative in determining overtime work is decisive. If an employee is late at the office because he does not have time to do everything on time, this is not overtime work. If the employee was asked to stay late by the boss, that’s a different matter.
Involving an employee in overtime work is possible only with his written consent and for additional payment. In accordance with Article 152 of the Labor Code of the Russian Federation, the first two hours of overtime work are paid at least one and a half times the rate, the subsequent ones - at least double. In addition, the duration of overtime work for each employee should not exceed 4 hours for two consecutive days and 120 hours per year.
To ask an employee to stay late to work for an hour or two, the boss must also have good reasons, which are listed in the Labor Code: the shift worker did not show up for work, which is continuous; the work was started, but due to an unforeseen delay for technical reasons it was not completed, which threatens the enterprise with loss or damage to property or threatens the life or health of people; the work is of a repair nature, failure to perform which threatens the enterprise with downtime.
Thus, overtime work is voluntary. In accordance with Article 99 of the Labor Code of the Russian Federation, an employer can force an employee to overwork even for double or triple pay in exceptional cases when it is necessary to prevent a disaster, restore the operation of the electricity and gas supply system, establish the functioning of the transport system, as well as in an emergency or military situation. provisions. In such cases, even the employee’s consent is not required.
Procedure for attraction
In what cases is the employee’s consent to overtime work not taken into account:
- preventing the results of a natural disaster, catastrophe, accident;
- military or emergency regimes, the onset of conditions that threaten the life and health of the population or part of it;
- socially required work to restore the functioning of communication systems, gas supply, water supply, communications, transport, heat energy.
The cases presented are strictly confidential. An employee who refuses such work can only be punished by a disciplinary sanction - a reprimand or reprimand.
When does an employer have the right to initiate processing:
- the need to complete started projects and work that, due to technical and other circumstances, were not completed within established working hours, and failure to complete them will entail negative consequences for the property of the employer or other persons, including municipalities and state property, and also entail risks to life and health population;
- the need for urgent repairs of equipment, production devices necessary for a regular production cycle, and failure to carry out such repairs will lead to unemployment of a large number of employees;
- continuation of work due to the absence of a replacement. The employer must look for ways to release the overtime employee and replace him to continue the shift.
At the same time, it is unlawful to demand that work be performed without the employee’s consent. The list is closed. In all other cases, both the consent of the person and the consent of the trade union are required.
The order for recruitment must include:
- reason for overtime;
- employee names;
- volume of work and number of hours;
- payment.
A brief summary is given in the table:
| Employee consent is required | No employee consent required | Consent of employee and trade union |
| Cases of necessity from Article 99 of the Labor Code | Emergency, dangerous situations and preventing their consequences. Closed list in Article 99 of the Labor Code | All other circumstances |
| Refusal does not entail liability | Disciplinary responsibility | Refusal does not entail liability |
The process of organizing overtime work:
- drawing up a memo on the need for processing:
- referral to the HR department;
- note registration;
- referral back to manager;
- the manager's resolution to the memorandum;
- keeping the note on file;
- drawing up an employee notification of recruitment;
- obtaining consent or refusal;
- keeping the notice on file;
- drawing up instructions/orders;
- sending the sample to the employee and the trade union;
- issuance of an order, signature of the manager, registration;
- referral to employee;
- accounting in the timesheet;
- calculation of payment for overtime or vacation hours;
- issuance of an order for compensation, signature of the manager, registration;
- sending the order to the employee for review;
- keeping the order on file;
- execution of employee compensation.
Sample notice of involvement in overtime work
Work on holidays and weekends
Employees may be required to work on holidays and weekends only with written consent. Such work is paid at least double the amount, even if the payment is piecework. In accordance with Article 153 of the Labor Code of the Russian Federation, the specific amount of wages on a weekend or non-working holiday can be established by a collective agreement, a local regulatory act adopted taking into account the opinion of the representative body of employees, or an employment contract. This especially applies to creative workers - journalists, actors, directors, etc., for whom working on weekends is common.
As in the case of overtime work, the law establishes a list of majeure circumstances when employee consent to work on holidays and weekends is not required.
In addition, an employee may agree to single pay for work on holidays and weekends if he is subsequently given time off on working days, which is not subject to payment.
Does an employer have the right to force people to work overtime?
Work that takes more time than required under the contract (agreement) is considered overtime. This applies to both a full working day and a shift, and the accounting period when a certain summarized standard of working time is established. If it is exceeded by the hour, then overtime occurs.
But if an employer tries to force an employee to work after the hours specified in the document, then you can seek the truth in court. If they are trying to force you to do this kind of work, look for a lawyer, he will explain everything and help with the claim.
Irregular working hours
In accordance with Article 101 of the Labor Code of the Russian Federation, an irregular working day is a special work regime, 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. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.
Thus, the fact that the employee’s working day is irregular should be enshrined in the labor or collective agreement, and not declared by the employer at will, as is often the case. Only in this case can the employee count on the compensation provided for such employees, namely additional days to paid leave, which must be at least three (Article 119 of the Labor Code of the Russian Federation). The duration of the additional mini-vacation must also be established by regulations at the enterprise.
Time off or financial reward
According to the first paragraph of Article 152 of the Labor Code of the Russian Federation, an employee has the right to receive additional days of rest on account of previously worked time. The maximum duration of this form of compensation is not provided for by law, but the duration of time off must be no less than the number of overtime hours worked. Important! The time for granting time off is agreed upon between the manager and the employee. If an employee decides to exercise this right on his own, such actions may qualify as absenteeism.
Where to contact?
To protect their labor rights, workers can contact the state labor inspectorate, the prosecutor's office, or directly file a claim in court. However, to count on a positive result, you must have a good evidence base. There may be problems with this. For example, recording working hours, which the employer is required to keep, in 99 cases out of 100 is of a formal nature and does not take into account actual overtime. If this is so, then it will be impossible to prove processing; the check will not reveal anything. If overtime is taken into account, but not paid, then in this case you can count on compensation, for which you can go to court. It must be remembered that the statute of limitations for labor disputes for employees, in accordance with Article 397 of the Labor Code of the Russian Federation, is three months.
Practice shows that it is easier for an employee to refuse unpaid overtime than to force the employer to pay for it. Although these are interconnected things. Ultimately, if all employees stop working overtime for free, then the employer will have to pay money for this work or abandon the practice. Trade unions often resort to such a form of protest as the “Italian strike,” which is also called work according to the rules, when workers strictly fulfill their job duties without deviating a step from them. This relatively safe form of protest may be suitable for office and creative workers who rarely organize into unions.
Someone might argue that entering into conflict with an employer can lead to dismissal. However, you must understand that it is impossible to fire an employee for refusing both paid and unpaid work at odd hours or on weekends. Dismissing an employee without his consent, especially if he “works strictly according to the rules,” is an extremely difficult and costly process for the employer. In most cases it is easier to reach an agreement.
When can an employer use overtime?
The norm in Russia is 40 working hours per week, but there is a maximum time during which an employee can work additionally. By law, this is 120 hours per year, 4 hours in a two-week period and 4 hours on two consecutive days.
Recycling more than this limit will be considered illegal. The organization must take into account and register each hour of such work as overtime.
According to Article 99 of the Labor Code of the Russian Federation, in some cases an employer may ask an employee to stay after his main job and obtain written consent from him, but not force him.
Thus, the employer has the right to involve an employee in overtime work by obtaining his written consent in the following cases:
- it is necessary to complete the started work process, which could not be done earlier for technical reasons, because failure to complete the work will lead to damage to the organization’s property or loss of life;
- it is necessary to repair equipment, the malfunction of which will lead to the stoppage of work of a large number of people;
- a replacement for an absent employee is needed when it is impossible to stop the process.
But if force majeure occurs, no one will ask the employees for consent; there may simply not be time for this. For example, when a factory building collapses due to equipment malfunctions, people themselves rush to help those who work nearby, and no one thinks about their rights. The Labor Code specifies several points on which an employer can force employees to work overtime without their consent:
- when a disaster has occurred, a state of emergency or martial law has been declared, and assistance is urgently required;
- when eliminating industrial accidents in heat and water supply, communications, transport, when people's lives are at risk;
- if there is a threat of a catastrophe, accident, or other force majeure circumstances, if additional actions by the enterprise’s employees are necessary.
Mostly, overtime work is initiated by the employer, but it happens that the employees themselves express a desire to work after the shift. For hours in which you have to work overtime, a separate payment is calculated, which the accountant adds to the basic salary. But this does not mean that the employer can always count on employees to work more than expected.
