Regulations on irregular working hours sample 2021: latest amendments, advice, documents

Astral

December 4, 2021 2511

Accounting and HR

We talked about where to start introducing irregular working hours in organizations in the articles “Regulations on irregular working hours. Sample" and "We document an irregular work schedule." Here are the main steps:

1. The organization adopts a regulation on irregular working hours or formalizes the innovation by order. This document specifies a list of positions with irregular hours and the conditions for granting additional leave for hours worked outside of the schedule.
2. An additional agreement to the employment contract is concluded with employees whose positions are included in the list, which includes information about changes in the working hours.
3. An order or instruction is issued for each employee or group of persons, which indicates the date of entry into force of changes in the work regime.
4. A journal is drawn up to record the working hours of employees during irregular working hours.

Next, we will consider in what form and how to inform an employee that he will have to work more than usual.

Who can have irregular working hours?

The Labor Code does not define the categories of employees who may be assigned irregular working hours in 2021; recent news does not promise changes. The company determines the list of positions independently and records it in a special internal document. But there are some restrictions. Such a regime cannot be established for employees with maximum working hours in accordance with Art. 94 Labor Code of the Russian Federation. These include:

employees aged 15-18 years;
workers 14-18 years old who combine work and study;
disabled people with a reduced time limit according to a medical report;
employees employed in hazardous industries.

And also with reduced working hours in accordance with Article 92 of the Labor Code. This number includes:

employees under 18 years of age;
disabled people of group 1 or 2;
working in harmful or dangerous working conditions (grades 3 and 4).

In the case of a part-time working day, irregularity can be established only in case of an incomplete week, but with a full working day.

How to install

First of all, the organization’s local regulations must establish a list of positions with irregular working hours and compensation procedures. Such a document is drawn up in free form, possibly on the organization’s letterhead. In addition to the list of positions, you must indicate the full name of the institution and its legal form.

Also, the condition regarding irregularity must be specified in the employment contract of a particular employee.

And in the order of admission it is necessary to reflect this condition in the column “Condition of admission, nature of work.”

Documentation of irregular hours for an employee

In practice, according to the law, irregular working hours can be established immediately upon hiring or after the employee has settled and worked for some time. At the same time, the procedure for documenting in each of these cases is different.

There are no standard approved forms of orders for irregular working hours. In the case of registration of an appointment for irregular working hours, an example is form No. T-1 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). Many companies use it in practice.

The employee is introduced to it against signature within 3 days after the actual start of work.

When prescribing the introduction of a new working regime, a free form of order is used already in the process of performing duties. It often happens that irregular working hours are caused by a transfer to a new position. In this case, you can also use a free form or form No. T-5.

Benefits for irregularity

A person with such a work schedule is subject to the enterprise regime. That is, he cannot come and go whenever he wants. The start and end times of the working day for such an employee are the same as for everyone else. But sometimes, by order of the employer, he can be involved in additional work both before the official start of the working day and after its end. Please note that this rule does not apply to hiring an employee on a day off. Such work is equivalent to extracurricular work and must be paid at an increased rate. We wrote about this in detail in the article on calculating overtime.

Work beyond the norm is not paid additionally, but is compensated by providing additional days of vacation (at the request of the employee). The minimum number of days is three (Article 119 of the Labor Code of the Russian Federation). An enterprise can establish a larger number of days of additional leave, enshrining this in local regulations.

At the request of the employee, additional leave can be replaced by monetary compensation (Article 126 of the Labor Code of the Russian Federation). To do this, you need to make a written application.

Is it necessary to justify and agree on the position?

Sometimes employees of personnel departments have a question: is it necessary, when developing a draft regulation, to indicate in it the reason why an irregular day is being introduced? The concerns are understandable: there is a possibility that such a provision will be recognized as unfounded by regulatory authorities or the court.

In reality, there is practically no risk here, because Art. 101 of the Labor Code of the Russian Federation, characterizing the involvement of workers in irregular hours, speaks of the need, but does not characterize this need in any way. Consequently, the draft provision may either not indicate the reason at all, or contain general wording such as: “Due to the need that has arisen...”.

However, it is important not to forget that Art. 101 of the Labor Code of the Russian Federation, without requiring mandatory justification, requires that the provision prepared according to the model always be coordinated with the representative body. The only case where this can be avoided is the complete absence of such a body at the enterprise. If there is one, the employer must find out his opinion (although he is not obliged to be guided by it). A sample regulation on irregular working hours , drawn up taking into account everything described above, you can download on our website.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

What is the difference between irregular working hours and overtime?

Employers often believe that by setting an employee an irregular working day, they can require him to constantly work after hours (outside the schedule). In other words, constantly be required to work overtime. But is it? It is necessary to understand and first compare two concepts: irregular working hours and overtime work. What do they have in common and what are the differences?

What is common is that in both cases we are talking about involving employees in work outside of normal working hours (both before the start of the scheduled work shift and after it).

And they differ in the following: for each case there is its own category of employees that can be attracted; they are hired to perform various types of work; and additional work is paid differently in each of the two cases.

So, in order.

Requirements for work in irregular mode

Employer's order. To attract an employee to work in irregular hours, an order from the director will be required. However, there is no clear definition in the Labor Code in what form this order should be. This can be an order, a memorandum, or even a verbal order from the manager.
Involvement as needed. In order to attract an employee to irregular work, there must be a justified reason. There are no restrictions on recruitment and the employer independently decides on the need for such work (

Who can be involved in irregular work

To be involved in additional work within the framework of irregular working hours, the position of this employee must be included in the list of positions with irregular working hours. This list of positions is fixed by local regulations. As a rule, an appendix to the PTR. Also, the condition on irregular working hours must be specified in the employment contract with the employee or in an additional agreement.

Any employees can be hired to work overtime, except those who cannot be hired due to the fact that they belong to the preferential category of workers (pregnant women, minors, studying at the organization under an apprenticeship contract). There are also categories that can be involved in overtime work only if they do not have health problems. These are disabled people and women with children under 3 years of age. At the same time, they must be aware of their right to refuse to work overtime.

Worker's compensation

When concluding an employment contract, which provides for the possibility of working beyond the standard length of the day, the employer can determine in this document additional compensation to the employee for the corresponding working conditions. However, the law does not provide for any obligation to pay workers any additional payments.

Contents of the sample contract

Despite the fact that the total number of hours worked per day will exceed the norm, the employee also does not have the right to show up for work later than the established time, citing the fact that he still worked the required norm.

pregnant women (Article 259 of the Labor Code);
employees for the duration of training (Article 203 of the Labor Code);
minor employees of the company (Article 99 of the Labor Code);
persons with a disability category;
women who have children under 3 years of age;
fathers who raise children without a mother;
persons who are guardians of minors (it is possible to be involved in non-standard work hours, with mandatory medical permission), as specified in Art. 99 TK.

If an employee is called on a day off, he must be paid double the average wage. You just need to notify about this in advance. If an employee is called to work at night, payment is made at the standard rate, unless the manager calls the employee on a special order.

Features of an employment contract with irregular working hours

The legislation of the Russian Federation does not establish an exact list of positions with irregular working hours, but contains recommendations on this matter. The manager has the right to independently approve the list of specialists who will be required to periodically work beyond the norm.

The collective labor agreement and internal regulations define the general provisions of the working hours of a separate organization, which are mandatory for each employee. But there are employees for whom it is necessary to establish a personal working day. Thus, in shipping companies, workers on shore and crew members at sea have different forms of work schedule. A sailor does not have the opportunity to go ashore after an 8-hour working day if the ship is drifting in the open ocean.

How is additional work paid for irregular working hours and overtime?

In case of irregular working hours, the employer can keep records of the employee’s working hours in order to avoid disputes and questions. The need for him to periodically go outside the main schedule is compensated for in another way. According to Article 119 of the Labor Code of the Russian Federation, he has at least three calendar days of paid leave. The employer may establish by local regulations more time for vacation for irregular working hours. It is characteristic that the employee has the right to them after a year of work, completely regardless of whether he was involved in additional work in the current year or not. These vacation days can be added to the main vacation, taken off separately, or even compensated to the employee with money based on his application.

The situation is different with overtime pay. An employee is involved in it on the basis of a written order; this time is also clearly recorded in the time sheet, since:

it is necessary to ensure that the employee is not involved in overtime for more than 120 hours per year and more than 4 hours in two days;
You must pay for these hours at an increased rate. According to Article 152 of the Labor Code, the first two hours are at least one and a half times, the subsequent hours are double. This compensation is the minimum guaranteed to the employee. But the employer can also increase the amount of this compensation by defining it in its local regulations.

What compensation is due?

Since information about an irregular schedule is significant and must be included in the employment contract, the employer must familiarize the future employee with this condition, as well as the compensation that he is entitled to for overtime working hours. In particular, according to Article 119 of the Labor Code of the Russian Federation, employees who work in this mode are entitled to additional paid leave. Its duration is determined by the collective agreement, but it cannot be less than three days.

An employee has the right to contact the employer with a request to replace additional leave for overtime with monetary compensation. This possibility is provided for in Article 126 of the Labor Code of the Russian Federation. However, providing this cash payment is the employer's right, not an obligation.

How to apply for irregular working hours

The procedure for working beyond the main schedule during irregular working hours is not regulated by law. Since this regime is fixed in the employment contract with the employee, engagement can often be made orally and not recorded in any additional documents. However, in order to avoid disputes, it is better to use written notification in this case. The company can independently develop a system for registering additional work for employees with irregular working hours, as well as a system for recording additional time worked in separate timesheets, but this will not affect wages. The rules for engaging in irregular work can be prescribed in a local regulatory act, for example, this could be a provision on irregular working hours, a sample for 2021 could look like this:

Making an order

name of the employing organization (if the order is issued on letterhead, there is no need to duplicate the name of the employer);
the word "order";
number and date of the order;
city where the document was drawn up;
full name of the document (for example: “order on establishing an irregular working day”, “order on introducing an irregular working day”);
reasons for introducing overtime working hours;
Full name and position of the employee in respect of whom the order was issued;
the period for which overtime is introduced;
the basis for its issuance (changes in a local regulatory act or notification of the employee and his consent to work beyond the norm);
persons authorized to sign by the employee and employer.

Contents of the order

The employer is obliged to store all personnel documents. The order on irregular working hours applies to personnel documents, as it establishes additional obligations for persons working overtime. The Federal Law “On Archiving in the Russian Federation” of October 22, 2004 establishes the obligation to store all legally significant documents even after their validity period expires.

In order to call employees after hours, enterprise managers are required to write an order that lists the employees (with positions) and indicates the method of compensation for overtime worked (payment or additional days off). The consent of the employees is attached to the order.

If you are constantly late at work, and the director has not issued any orders in this regard, this fact is also not reflected in your salary, then you should turn to specialists. In such situations, the fact of working overtime is recognized in court, and the amount unpaid to you is recovered from the employer. The most difficult thing is to prove your position in court; it is very difficult for an ordinary citizen to represent his interests in a trial.

How does the Russian Labor Code define working hours?

Labor Code of the Russian Federation in Art. 100 defined that working hours are the length of the working week (five-day, rotating schedule and other options) and the duration of one employee day (shift, part-time). The limitation on the length of the working week is no more than 40 hours per week. The legal regulation of working hours is specified in the collective labor agreement or internal labor regulations. When applying for a job, you should ask for a copy of the collective agreement, since in a controversial situation, specialists will be able to resolve the conflict faster if they have this document in hand.

Thus, the law does not stipulate which categories of employees are entitled to irregular working hours. Government Decree No. 884 states that the list of employees with this schedule includes management, technical and business personnel. In addition, it is recommended to set irregular working hours:

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But this only applies to performing duties on weekdays. Employees' days off and public holidays are not included in the irregular schedule, so going to work at this time is permissible only with the written consent of the employee and with the provision of compensation provided by law (double pay or a day of rest). This is also indicated in the Letter from Rostrud.

Article 119 of the Labor Code of the Russian Federation - Annual additional paid leave for employees with irregular working hours

To establish an irregular day for an employee, it is necessary to stipulate in the collective agreement positions with such a work schedule. This can also be recorded in labor regulations or other local acts. In addition, when hiring new employees, this point is noted in the employment contract.

According to Article 97 of the Labor Code of the Russian Federation, the employer has the right sometimes (if necessary) to involve an employee in work beyond the duration of his working hours only in two cases: for overtime work (Article 99 of the Labor Code of the Russian Federation) and if he is assigned an irregular working day (Article 101 Labor Code of the Russian Federation).

How to apply for overtime

The situation is different with the documentation of involvement in overtime activities.

As a rule, the need for overtime activities arises suddenly, and there is not much time left to prepare documents. Therefore, if the employee does not belong to a special category, and the need to leave is related to emergency situations, then it will be enough to issue an order to attract additional work and familiarize the employee with it. In this case, his refusal to withdraw may be accompanied by an administrative penalty.

If the need to leave outside the schedule is not of an emergency nature, then consent to leave must be obtained from the employee. This can be done both on the order itself and on the notice of involvement in overtime work, which can be issued in advance (see Notice of involvement in overtime work and order).

In the timesheet, overtime is indicated by the letter “C” and the number 04. Payment for it is made as follows: for the first two hours - at one and a half times, for subsequent hours - at double. This is the minimum compensation established by the Labor Code.

Important nuances

Employers often establish this regime, but do not take into account the following nuances:

even if there was no need to attract an employee during the year, he is still entitled to additional leave;
an employee can only be involved sporadically; if an employer delays his employee every day, the employee can file a complaint. In this case, such actions will be considered as engaging the worker overtime, for which appropriate payment is due;
the regime of irregular working hours cannot be applied to certain categories of workers (minors, pregnant women, etc.);
an order to work extra time must be made in writing;
the employer must not involve the employee in performing work functions on weekends and holidays without their consent.

How to introduce employees?

Employees must be familiar with the regulations upon signature. This is a mandatory requirement, without which the document will not be recognized as valid.

Validity periods

The provision will remain in effect until the following circumstances occur:

expiration date determined by the employer;
cancellation of the provision;
the entry into force of a new provision that repeals the old one.

How often can you be hired additionally during irregular working hours?

The concept “occasionally”, used to determine the frequency of involvement in additional work during irregular working hours, is not disclosed in the current legislation. Therefore, it is worth proceeding from the etymology of this word, which means a separate incident, random event or circumstance. Therefore, constant, daily work outside normal working hours will not correspond to the concept of irregular working hours. Thus, the frequency of involvement in additional work as an irregular worker should be assessed individually.

But can there be overtime work during irregular working hours? First of all, it is worth noting that if an employee, whose employment contract stipulates irregular working hours, is called to work on his day off, then such work is paid to him, according to the law, in an increased amount, regardless of his normal working day or unstandardized.

If you are involved in an additional function on a working day beyond the schedule, you must remember the main criteria for an irregular working day: occasional involvement and additional work within the framework of your work function. Thus, we can conclude that involvement in additional work within another function, as well as involvement of a regular nature, requires increased payment in order to avoid disputes with inspection bodies and the employee himself.

How does the Russian Labor Code define working hours?

Many employers make the mistake of talking about an irregular work schedule during a job interview. Many of them believe that employees should be in the office day and night for a regular salary. The labor code defined irregular working hours as a special regime under which individual workers may occasionally, by order of the manager, be involved in performing their functions outside the time frame of the regular working day. The list of employees who can work this way is established by the collective agreement.

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Collective labor agreement

It should be understood that irregular working hours do not apply to weekends and holidays. Simply put, you cannot force an employee to work on holidays if he has a standard eight-hour working day with two days off, that is, not a shift work schedule.

This employment regime is stipulated in labor legislation. However, the employer must draw up a regulation on irregular working hours, a sample of which can be seen below.

Concept and terminology

When drawing up a sample regulation on irregular working hours for drivers and other positions, it should be taken into account that even if during the calendar year the employee has never been involved in irregular working hours, then he is still entitled to additional leave.

2.3. Employees working irregular working hours are subject to the Internal Labor Regulations regarding the start and end times of the working day, however, based on the order of the employer (including verbally), these employees may occasionally be involved in work outside the limits established for them the duration of the working day, both before it begins and after it ends.

1.1. This Regulation on irregular working hours in accordance with the current legislation (Articles 97, 101, 116, 119, 126 of the Labor Code of the Russian Federation) establishes the procedure for attracting workers with irregular working hours to work outside the normal working hours established for this category of workers , a list of positions of employees who may be assigned irregular working hours, as well as the procedure and conditions for granting annual additional leave for irregular working hours.

General provisions

2.1. An irregular working day as a special mode of work, according to which employees can, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the established working hours, can be established for employees occupying the following positions:

Sometimes employees, believing that they have worked a lot (for example, worked outside working hours every day for a month), ask the employer for an additional paid day off. Their desire is understandable - they thought that they would overwork sometimes, but the employer involved them in such work all the time. But overtime hours during irregular working hours are not equal to overtime hours during overtime work, in which an employee has the right to choose additional rest time instead of increased pay (Article 152 of the Labor Code of the Russian Federation). Since the law provides for only one type of compensation - additional leave, the employer is not obliged to satisfy such a request,

Thus, the employee filed a lawsuit to declare the disciplinary sanction illegal. He was reprimanded for being 25 minutes late for work. The employee believed that there could be no delay, since he had an irregular working day. The court, recognizing the disciplinary sanction as legal, indicated that an irregular working day presupposes work outside the established working hours and does not provide for the release of an employee from work within the established working hours, as well as the arbitrary independent determination by the employee of the time of coming to work and leaving work, being late for work (Determination of the Moscow City Court dated 06/07/2016 No. 4g-5671/2016).

Who can have irregular working hours?

If the position was included in the said list during the work process, then employees occupying these positions must be notified in writing of the change in work mode at least two months before the establishment of the new mode. Since Art. 74 of the Labor Code of the Russian Federation allows changing the terms of an employment contract only for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.), the employer must have reasons to include a particular position in the list of positions with irregular working hours.

07 Dec 2021 jurist7sib 29

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