Article 99 of the Labor Code of the Russian Federation continues the theme of Chapter 15 of Section IV of the Labor Code of the Russian Federation regarding legislative definitions of working time and its various types.
So, in Art. 99 of the Labor Code of the Russian Federation we are talking about overtime work, that is, work that goes beyond the working hours established by law or an employment contract. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ
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Legal restrictions
Work beyond the working time limit on the initiative of the employee cannot be considered overtime work. That is, only work performed by employees at the direction of the employer can be considered overtime work. It should be understood that the employer in this case means the highest official of an enterprise or organization. Accordingly, employees can go to work overtime only on the basis of an order from the manager.
Organizing overtime work on the initiative of mid-level management officials also cannot be considered as overtime and will be classified as work performed without the knowledge of the employer. This means that when an employee goes to work overtime, he or she must comply with the following procedure:
- obtaining the employee's written consent;
- issuing an order on overtime work.
The possibility of involving an employee in overtime work without his written consent exists within strictly limited limits by law. These frameworks are indicated in Part 3 of Art. 99 of the Labor Code of the Russian Federation, which defines cases in which the employee’s written consent is not required. These cases include certain emergency and extraordinary situations that can entail a threat to the life and health of citizens.
Thus, involvement in overtime work aimed at eliminating or preventing the consequences of accidents, disasters, natural disasters, or in work related to troubleshooting problems in the life support system, can be carried out on the initiative of the employer without the condition of obtaining the employee’s consent.
In accordance with Part 6 of Art. 99 of the Labor Code of the Russian Federation, the overtime work limit cannot exceed:
- 4 hours consecutively for two days;
- 120 hours throughout the year.
Who should not be involved in processing?
The following cannot be involved in processing:
- pregnant women;
- persons under the age of 18;
- employees during the period of validity of the student contract.
This list is not complete; it can be supplemented by some other persons who are contraindicated for processing due to health conditions.
Certain categories of personnel can be invited to work overtime only after receiving their written consent, making sure that there are no medical contraindications and informing the employee, upon signature, of the right to refuse overtime. Such persons include:
- disabled people;
- women with children under three years of age;
- single mothers and fathers with children under five years of age;
- employees with disabled children;
- persons caring for a sick family member;
- guardians of minors.
Guarantees and compensation
In a certain sense, Art. 99 of the Labor Code of the Russian Federation should be considered reference, since understanding the essence of overtime work is impossible without referring to Art. 104 of the Labor Code of the Russian Federation, which defines the concept of summing up working time. Based on the meaning of Art. 104 of the Labor Code of the Russian Federation, overtime work will be considered work in excess of the upper limit of working hours for the period subject to accounting.
Taking into account the fact that overtime work leads to exceeding the norm of working time established by law, the Labor Code of the Russian Federation regulates a certain list of legal guarantees designed to limit the possibility of involving workers in overtime work, namely:
- a clearly defined list of circumstances is established that allows for involvement in overtime work without the employee’s consent;
- a procedure is being introduced to attract employees to overtime work;
- overtime work limits are established;
- categories of employees are determined whose involvement in overtime work without their consent is unacceptable, regardless of the reason that led to the need to introduce overtime work.
So, in accordance with Part 2 of Art. 99 of the Labor Code of the Russian Federation establishes the following categories of workers whose involvement in overtime work is unacceptable without their consent:
- employees who are obliged to complete certain work, failure to complete which may lead to serious or simply local negative consequences, for example, suspension of work, violation of shift schedule, etc.;
- pregnant women;
- minor workers;
- employees with whom, in accordance with Art. 203 of the Labor Code of the Russian Federation, student agreements have been concluded;
- female workers with children under 3 years of age and disabled workers. In addition to the fact that this category of workers can be involved in overtime work only with their written consent, the employer is also obliged, in accordance with Part 5 of Art. 99 of the Labor Code of the Russian Federation, notify them in writing of their right to refuse overtime work;
- male workers raising children under 5 years of age on their own (259, 264 of the Labor Code of the Russian Federation);
- employees who are dependent on and raising disabled children;
- workers caring for a family member in need of constant care.
In accordance with parts 2, 3 of Art. 99 of the Labor Code of the Russian Federation, when inviting employees to work overtime, the employer is also obliged to take into account the opinion of the employees’ trade union. This does not mean that the employer is required to obtain the union's consent. Moreover, the employer also has the right to go against the opinion of the trade union.
Commentary on Article 99 of the Labor Code of the Russian Federation
Overtime work is work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours during the accounting period.
When recording working hours by the day, work beyond the established duration of the working day is considered overtime.
In the case of cumulative accounting, overtime will be considered work in excess of the established duration of the work shift.
Usually, an order is issued regarding the performance of overtime work, which stipulates the reasons why it is necessary and the categories of workers involved in the work. However, if such an order was not issued, but there was a verbal order from one of the administration representatives, then the work is considered overtime.
Overtime work is recognized in practice even when it was carried out not only with the knowledge of the employer, but also of the immediate supervisor of the work (foreman, site manager, etc.). However, in all cases, involvement in overtime work is possible only with the written consent of the employee.
Work is considered overtime regardless of whether it was part of the employee’s duties or not.
Overtime work is not considered to be work in which the actual duration of daily work on certain days may not coincide with the duration of the scheduled shift.
Overtime work beyond the established duration of the working day is not recognized when working the standard hours with a flexible work schedule, which will be discussed in the section on working hours.
Work beyond the stipulated working hours of employees with irregular working hours, if it is compensated by additional leave of more than 28 calendar days, is not considered overtime.
Overtime work during vacation hours without pay is not considered, as well as work performed part-time (in excess of the established duration of working hours), work performed by an employee beyond the time stipulated by the employment contract, but within the established duration of the working day (shift), working part-time (Resolution of the Plenum of the Supreme Court of November 24, 1978 No. 10 “On the application by courts of legislation regulating the remuneration of workers and employees”).
Work in the order of combining professions (positions) does not apply to overtime (Article 151 of the Labor Code of the Russian Federation).
Work under civil law contracts (for example, assignments, paid services, contracts, etc.), carried out in free time from work, does not apply to overtime.
Involvement in overtime work is carried out by the employer with the written consent of the employee and does not require permission from the representative body of employees in the following cases established by Article 99 of the Labor Code of the Russian Federation:
1) if necessary, perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may lead to damage or destruction of property the employer (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), state or municipal property, or create a threat to the life and health of people;
2) when carrying out temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;
3) to continue work if the replacement employee fails to appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift worker with another employee.
An employer’s involvement of an employee in overtime work without his consent is permitted in the following cases:
1) when carrying out work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
2) when carrying out socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of water supply, gas supply, heating, lighting, sewerage, transport, and communications systems;
3) when performing work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases, threatening the life or normal living conditions of the entire population or part of it.
In other cases, involvement in overtime work is permitted with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.
Pregnant women, workers under the age of eighteen, and other categories of workers are not allowed to work overtime in accordance with this Code and other federal laws. Involvement of disabled people and women with children under three years of age in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report issued in the manner established by federal laws and other regulations legal acts of the Russian Federation. At the same time, disabled people and women with children under three years of age must be informed of their right to refuse overtime work upon signature.
These guarantees also apply to employees with disabled children under the age of 18; workers caring for sick members of their families in accordance with a medical report (Part 2 of Article 259 of the Labor Code of the Russian Federation); fathers raising children of the corresponding age without a mother, and guardians (trustees) of minors (Article 264 of the Labor Code of the Russian Federation).
The duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year.
The employer is required to ensure that each employee's overtime hours are accurately recorded.
In other cases, in addition to those specified in Article 99 of the Labor Code of the Russian Federation, involvement in overtime work is allowed in addition to the written consent of the employee, taking into account the opinion of the representative body of employees. That is, the Labor Code of the Russian Federation establishes a double guarantee against the unreasonable involvement of workers in overtime work.
For a certain category of workers, there is a direct ban on being involved in overtime work.
Very often, overtime work is confused with the so-called “irregular working hours”. The latter is a condition of an employment contract concluded with certain categories of workers (usually managers, specialists) and consists in the fact that on certain days, if there is a production need, these workers can be involved in work beyond the working day (shift).
For each individual employee (and not on average for all persons involved in overtime work, not for the organization as a whole), overtime work cannot last more than 120 hours per year and 4 hours for two days in a row.
In some cases, certain regulations allow higher overtime limits. This applies, for example, to railway workers, subway workers, some categories of drivers, forestry workers, etc. In these cases, the rules of special legal acts apply.
For example, paragraph 5 of the Regulations on the peculiarities of working hours and rest time for communication workers with a special nature of work dated September 8, 2003 N 112 states that the use of overtime work is allowed in cases provided for in Article 99 of the Labor Code of the Russian Federation, as well as in the following exceptional cases:
1) when carrying out urgent work to eliminate accidents on communication lines and station equipment;
2) when carrying out work on the transportation and delivery of mail and periodicals in cases of delay of railway, air, sea, river and road transport or untimely submission of periodicals by publishing houses;
3) when processing increased telephone, telegraph and postal exchanges on the eve of holidays;
4) when processing orders for periodicals during the subscription campaign;
5) in case of unscheduled delivery of pensions.
Involvement in overtime work in these exceptional cases is permitted with the written consent of the employee and taking into account the opinion of the elected trade union body of the organization.
The Labor Code of the Russian Federation provides for a special procedure for paying overtime work. Article 152 of the Labor Code of the Russian Federation regulates the issue of remuneration for workers involved in overtime work in the prescribed manner. Applying the rules of Article 152 of the Labor Code of the Russian Federation, it should be noted that currently:
1) differences in remuneration for workers involved in overtime work have been eliminated, depending on whether the employee works on the basis of a time-based wage system or works on a piecework basis;
2) specific amounts of remuneration for overtime work can be determined in a collective agreement or in an employment contract.
In all cases, for the first 2 hours of overtime work, the employee is now paid no less than one and a half times the amount, and for subsequent hours - no less than double the amount. In other words, the rigidly centrally established upper limits of surcharges for overtime work have been abolished. You cannot pay less than the limits established in Article 152 of the Labor Code of the Russian Federation, but you can pay more.
In addition, it is now possible not only to provide time off for overtime work, but also to add days off to annual leave, releasing the employee from work on other days for the number of hours for which the employee was involved in overtime work.
Payment
Regardless of whether the employer has followed or failed to comply with the procedure for engaging in overtime work and recording overtime work, the employee has the right to demand appropriate payment for hours worked in excess of the norm.
Payment is made:
- at least time and a half for the first two overtime hours worked;
- minimum double for hours over two.
In accordance with Art. 152 of the Labor Code of the Russian Federation, an employee, at his own request, has the right to request additional rest instead of payment.
Procedure for engaging in overtime work
First of all, the employer is obliged to draw up a notice of employment outside the schedule. On this document, the subordinate must express his written consent or refusal. For those categories of persons who have the right to refuse unscheduled work, the notification includes a clause informing them of the opportunity to refuse.
If consent is received, the employer proceeds to draw up the appropriate order. There is no unified form for this document, so it is compiled in free form. However, it must indicate the reason for unscheduled work, the date of their start, full name. and the position of the employee, as well as details of the document confirming consent to additional work.
The employee gets acquainted with the order and signs it. If he gave his consent and signed the order, then failure to appear at the workplace may result in disciplinary action.
Key points on overtime work
To avoid troubles with inspection authorities, the employer is recommended to:
- request the written consent of employees and the opinion of the elected body of the primary trade union organization;
- check whether, according to a medical report, the recruited employees are not contraindicated from working overtime;
- compensate for work beyond normal working hours;
- reflect in a collective agreement or other local regulation the procedure for attracting employees to overtime work, providing additional days of rest and the mechanism for calculating monetary compensation for overtime (for example, will increased overtime pay include bonus payments);
- keep an overtime log and use it to monitor that employees do not overwork more than 120 hours per year.
Working hours beyond normal
According to Article 91, Part 2 of the Labor Code of the Russian Federation, the established hourly labor rate is 40 hours of work in one week. This amount of working time is the norm, regardless of the organizational form of the enterprise and the type of contractual relationship the employee has.
Article 91 of the Labor Code of the Russian Federation
“The concept of working time.
Normal working hours" (more details) The Labor Code establishes a maximum standard of overtime hours. It cannot exceed 120 hours in one year, and must not exceed 4 hours in two consecutive days. This restriction applies to work at the main workplace.
Expert commentary
Kamensky Yuri
Lawyer
In addition to the existing restrictions on overtime work in accordance with the law, enterprises and organizations are guided by their internal regulatory documents, which are developed taking into account the specifics of the work of each employee. For example, for drivers, railway workers and other professions, other standards for the duration of overtime work have been developed.
To exclude cases of violation of established restrictions on such work, the employer must necessarily track the hours worked by each employee in excess of the norm.
Overtime pay for cumulative accounting
To understand this issue, you should adhere to clause 5.5 of the Recommendations on the use of flexible working time regimes in enterprises, institutions and organizations of sectors of the national economy, approved by Resolution of the USSR State Committee for Labor No. 162, All-Union Central Council of Trade Unions No. 12-55 of 05/30/1985. These Recommendations are valid to the extent that they do not contradict the Labor Code of the Russian Federation (Article 423 of the Labor Code of the Russian Federation, decision of the Supreme Court of the Russian Federation dated October 15, 2012 No. AKPI12-1068).
This is also important to know:
Reducing the working week according to the Labor Code: payment features
In accordance with the document, it is necessary to determine the number of working days in the accounting period and pay for the first two hours, falling on average on each working day of the accounting period, in no less than one and a half times the amount, and for the following hours - in no less than double the amount.
When recording working time in aggregate, overtime hours are calculated at the end of the selected accounting period (month, quarter, half-year, year). At the same time, on some days an employee may work more, on others – less, the main thing is that during the accounting period he works the established norm of hours. Exceeding this norm is considered overtime.
Important! The time when an employee was absent from work for a valid reason (for example, sick or on vacation) is excluded from his standard working hours.
Stages
Let's consider the procedure for engaging in overtime work: what kind of work is classified as overtime and when it is allowed.
There are two main stages in attracting an employee to work overtime.
First stage:
It is important for the employer to remember that he is obliged to notify certain categories of employees by signature of the right to refuse such work. All verbal agreements with employees can lead to disputes. To avoid this, it is necessary to adhere to the position that all employee-employer agreements are documented. Therefore, the employer must:
- obtain the employee’s written consent;
- make sure there are no medical contraindications;
- notify employees under personal signature of the right to refuse to perform overtime work.
The employee notification does not have a special form, but contains information:
- Name;
- notification number and date of preparation;
- Full name and position of the specialist involved;
- the reasons why there was a need to be present at work overtime;
- the date when you need to work “extra” hours (you can specify a time interval);
- conditions - increased wages or compensation in the form of additional rest due to the employee.
The notice is signed by the head of the employing company. An employee can express his will by signing in the “Agree” or “Disagree” field.
A sample written consent to engage in overtime work can be viewed here.
Second phase:
The employer issues an order requiring overtime work and must familiarize the employee with it. The unified form of such an order has not been approved, so the employer draws it up in free form. The order must indicate:
- the reason for involving the employee in overtime work;
- work start date;
- surname, name, patronymic of the employee;
- his position and details of the document in which the employee agreed to be involved in such work.
This is also important to know:
Investigation of industrial accidents: which accidents are subject to investigation and recording
A sample order for overtime work can be found here.
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If a collective agreement or local regulation establishes the amount of additional payment, then it is possible to indicate this amount in the order. The amount may also be determined by agreement of the parties. The employee must be familiarized with the order and signed.
When inviting employees to work overtime, it is worth remembering that the duration of such work should not exceed four hours for each employee for two consecutive days and 120 hours per year. To do this, the employer is obliged to ensure accurate recording of the duration of overtime work for each employee.
In the working time sheet, overtime work is indicated either by the numbers “04”, and next to it the number of hours worked in excess of the norm is indicated. If standard daily records of hours worked are maintained for employees, on days of overtime work it is recommended to reflect separately standard and excess working hours in two lines. And if summarized accounting of working hours is used, overtime is reflected at the end of the accounting period.
Overtime working time (concept and legal framework)
The time that a working citizen is called upon to spend on performing his job duties is called working time by labor legislation. Art. is devoted to working time. 91 of the Labor Code, which establishes the maximum duration of work in the general case no more than 40 hours per week, that is, 8 hours during the working day with a 5-day work week. For some groups of workers, the normal working hours during the week are set at 36, 35 or 24 hours. Also Art. 91 obliges employers to keep records of working time spent by each employee.
If the time required to perform job duties exceeds the standard labor standards established by law, then the Labor Code calls such a work process work beyond the normal duration of the work regime. This excess of the labor regime is possible in two forms:
- in the form of irregular working hours;
- in the form of overtime work.
At the same time, the irregular working hours regime may apply only to individual employees working in positions defined by the internal documents of the organization. Working overtime, on the contrary, can affect every working citizen.
The main provisions relating to overtime work are established by the Labor Code of the Russian Federation. In addition, federal and industry legislation, through a number of regulations, specifies the requirements of the basic labor law. Such acts, for example, are:
- Federal Law of the Russian Federation “On Social Protection of Disabled Persons” dated November 24, 1995 No. 181-FZ;
- Order of the Ministry of Transport of the Russian Federation dated November 21, 2005 No. 139;
- Order of the Federal Customs Service of Russia dated December 16, 2011 No. 2529.
Let us now consider the provisions on overtime work in more detail.
Overtime and tax laws
The Tax Code of the Russian Federation does not contain restrictions regarding the accounting of norms for payment of overtime work. Accordingly, violation of labor standards cannot entail a violation of tax requirements. And in cases where an employee worked more than 120 hours overtime during the year, the employer has the right to recognize the increased additional payment for this work in tax accounting in full. If we talk about taxes on personal income, we note that accruals for overtime work are one of the components of wages, therefore they are not subject to the provisions on exemption from personal income tax in accordance with paragraph 3 of Art. 217 Tax Code of the Russian Federation. In addition, accruals for overtime work to employees are subject to insurance contributions to the Pension Fund of the Russian Federation, the Compulsory Medical Insurance Fund and the Federal Social Insurance Fund of the Russian Federation and insurance premiums for injuries.
