Overtime work must not exceed. Features of overtime work

10.10.2019

Overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of summarized accounting of working time - in excess of the normal number of working hours for the accounting period.

Involving an employee in overtime work by an employer is allowed with his written consent in the following cases:
1) if necessary, perform (finish) the work begun, which, due to an unforeseen delay due to specifications production could not be performed (completed) during the working hours established for the employee, if the failure to perform (non-completion) of this work may entail damage or destruction of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;
2) in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause the termination of work for a significant number of employees;
3) to continue work in the absence of a replacement employee, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

Engaging an employer of an employee to work overtime without his consent is allowed in the following cases:
1) in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
2) in the production of public necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized systems of hot water supply, cold water supply and (or) sanitation, gas supply systems, heat supply, lighting, transport, communications;
3) in the performance of 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 situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases, endangering the life or normal living conditions of the entire population or part of it.

In other cases, involvement in overtime work is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

It is not allowed to involve pregnant women, employees under the age of eighteen, other categories of employees in overtime work in accordance with this Code and other federal laws. Involvement in overtime work of disabled people, women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited by them for health reasons in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts Russian Federation. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime.
The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year.

It is the employer's responsibility to ensure that each employee's overtime hours are accurately recorded.

Commentary on Article 99 of the Labor Code of the Russian Federation

1. Overtime work is work performed by an employee at the initiative of the employer outside the working hours established for him. In this case, the established duration of working hours is understood as the duration of working hours established for a given employee in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements, local regulations, an employment contract (Article 97 of the Labor Code). With the summarized accounting of working hours (see article 104 of the Labor Code and commentary thereto), overtime is considered to be work in excess of the normal number of working hours for the accounting period.

2. Only work performed at the initiative of the employer may be considered overtime work. Work outside the working hours established for the employee, performed not at the initiative of the employer and without his knowledge, cannot be considered as overtime work.

3. Since the use of overtime work leads to the excess of the norm of working time, the legislation establishes legal guarantees that ensure its limitation. These guarantees are:

a) establishment of lists of circumstances under which the written consent of the employee is required or not required to involve an employee in overtime work;

b) the introduction of a complicated procedure for engaging in overtime work in other cases;

c) limiting the duration of overtime work for one employee;

d) establishment of a circle of persons who cannot be involved in overtime work.

4. Part 2 of the commented article lists the cases when the involvement of employees in overtime work is allowed only with their consent. These cases include situations that can cause a significant number of employees to stop working.

5. The list of circumstances that give the employer the right to involve employees in overtime work without their written consent is given in part 3 of the commented article. These include emergency circumstances that endanger the life or normal living conditions of the population or part of it.

6. Part 4 of the commented article provides for the possibility of involving employees in overtime work in other cases in addition to the emergency and unforeseen circumstances listed in the commented article. The absence in the Labor Code of specifying the concept of "other cases" allows the employer to raise the question of the use of overtime work in case of any complications in the activities of the organization, individual entrepreneur. As an additional guarantee of limiting overtime work in the absence of emergency or unforeseen circumstances provided for in parts 2 and 3 of the commented article, along with obtaining the written consent of the employee, there is also a requirement to take into account the opinion of the elected body of the primary trade union organization.

The decision of the employer to apply overtime is not a local normative act, and the Labor Code does not establish a procedure for taking into account the opinion of the elected body of the primary trade union organization for such cases (see Article 371 of the Labor Code and commentary thereto). The requirement to take into account the opinion of the elected body of the primary trade union organization in this case can be considered fulfilled if the employer has notified this body in advance of the need to apply overtime, the grounds for which such a need arose, and the volume (duration) of overtime work; when making a final decision, the employer must have the opinion of the trade union body. Taking into account the opinion of the elected body of the primary trade union organization does not mean that the employer must agree with it.

7. Persons who cannot be involved in overtime work include pregnant women, employees under the age of 18, other categories of employees in accordance with the Labor Code and other federal laws (for example, employees with whom a student agreement has been concluded (see part 3 article 203 of the Labor Code and commentary to it)).

8. With regard to women with children under the age of three, as well as disabled people, the Labor Code has established a special procedure for engaging in overtime work: in addition to obtaining the written consent of the employee, the employer must inform him in writing of the right to refuse overtime work. The same procedure for engaging in overtime work is established in relation to mothers and fathers raising children under the age of five without a spouse (wife), employees with disabled children; workers caring for sick members of their families in accordance with a medical report, as well as fathers raising children without a mother; guardians (custodians) of minors (see Articles 259, 264 of the Labor Code).

9. The requirements of the law on obtaining the written consent of the employee to involve him in overtime work and on familiarizing the employee in writing with the right to refuse overtime work must be fulfilled by the employer every time when there is a need to involve employees of the relevant categories in such work.

10. By prohibiting the involvement of underage workers in overtime work, the Labor Code established an exception to this rule: creative workers and professional athletes under the age of 18 whose professions are indicated in the lists established by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, may be allowed to work overtime (see article 268 of the Labor Code and commentary to it).

11. The maximum limits for the duration of overtime work established by part 6 of the commented article: 4 hours. for two consecutive days and 120 hours. per year - cannot be exceeded.

Failure by the employer to keep accurate records of overtime work performed by each employee is a violation labor law and should entail the responsibility of the employer, but cannot lead to infringement of the rights of the employee. The employee has the right to demand payment for overtime work even if they are incorrectly executed or not taken into account.

Overtime work is paid at an increased rate (see article 152 of the Labor Code and commentary to it).

Another commentary on Article 99 of the Labor Code of the Russian Federation

The above article contains a definition of overtime work, in which this work is clearly indicated as being performed outside the working hours established for employees, and in the case of summarized accounting of working hours, in excess of the normal number of working hours for the accounting period. Overtime work is carried out at the initiative of the employer, but the involvement of the employee in its implementation is carried out only with his written consent in cases expressly provided for in Part 2 of Art. 99 of the Labor Code (as, for example, when a replacement employee does not appear, if the work does not allow a break).

At the same time, part 3 of Art. 99 of the Labor Code provides for cases when an employee is involved in overtime work without his consent (for example, in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate their consequences; in the production of urgent work to eliminate unforeseen circumstances that disrupt the normal functioning of water supply systems, gas supply, and in other cases), and part 4 of the commented article provides for involvement in overtime work with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization. However, it must be borne in mind that in these cases the procedure for taking into account the opinion of the elected body of the primary trade union organization, established by Art. 372 of the Labor Code when adopting local regulations.

It is important to note that the commented article generally prohibits the involvement of pregnant women, workers under the age of 18 in overtime work. At the same time, the involvement of disabled people in overtime work, women with children under the age of three, is allowed only with their written consent, subject to the following conditions: firstly, such work is not prohibited to them for health reasons in accordance with a medical report and, secondly, they are informed in writing that they have the right to refuse to perform overtime work.

Article 99 of the Labor Code establishes the maximum number of overtime hours for each employee - no more than four hours for two consecutive days and 120 hours per year. At the same time, the law imposes on the employer the obligation to ensure accurate accounting of overtime work performed by each employee (Article 99 of the Labor Code).

Work in excess of the established working hours is not overtime if it is performed by an employee with irregular working hours, provided that he is compensated for processing by providing additional annual paid leave (see comments to Article 101).

Labor legislation on the territory of the Russian Federation quite comprehensively reveals the issues of implementation labor activity.

At the same time, the fulfillment of all its requirements is strictly mandatory. Especially when it comes to such complex aspects of the activity as overtime work.

What it is

Today, the term "overtime work" refers to the performance of certain labor activities in excess of the norm established by the relevant contract.

The main condition is the presence of an appropriate initiative on the part of the employer. If it is absent, then work of this kind is not overtime.

This kind of work can be divided into two main categories:

without the consent of the employee;
with the written consent of the employee.

At the moment, a special category of overtime work is one that must be carried out regardless of the presence or consent of the employee himself to carry out such activities.

Such work today, according to the current legislation, includes:

performance of any work to eliminate man-made or natural disasters, accidents at industries hazardous to humans;
when performing work to eliminate problems in the operation of some communication systems:
- transport;
- connection;
- water supply;
- sewerage;
- heating;
- gas supply;
if the need to perform certain work is required due to the introduction of a state of emergency / martial law;
work required due to major disasters:
- epidemics;
- fires;
- thunderstorms;
- earthquakes and more.

The performance of all work related to the situations indicated above is strictly mandatory. There are no alternatives.

According to labor legislation, the employee is obliged to fulfill everything required of him by the employer in the situations indicated above.

Such work currently includes the following:

if for some technical reason or otherwise beyond the control of the employee and the employer, certain work was not performed within the working hours established by the labor agreement;
if it is necessary to carry out repairs of structures and devices, the non-operational state of which will lead to the cessation of work for a very a large number employees;
for some reason, an employee who is a shift did not appear at the place of work - if the work performed at the production site does not allow for a break.

It is important to remember that in some cases, when engaging in work, it is necessary to take into account the opinion of the trade union body. But, at the same time, the negative decision of the trade union does not matter.

At the same time, the consent of the employee himself is strictly required. If this is not available in writing, then there is simply no right to involve him in this kind of activity.

Today is not a work of the type in question:

It is not a job of this type if the daily duties on some working days exceed the duration of the shift established by the special schedule.

It is taking into account all the points indicated above that the employer will need to form the amount of payment for his particular employee. If there are any difficulties, you should consult with a qualified lawyer.

Overtime work according to the Labor Code of the Russian Federation

One of the most important points today for many citizens is the following: can overtime work be compensated by additional rest?

This and all other issues are considered in maximum detail in special legislation. The regulatory document () is fundamental, it should be guided first of all.

The most significant NAPs in the Labor Code of the Russian Federation are the following articles:

The employer should always focus on the latest edition of the Labor Code of the Russian Federation. It is important to remember that violation of labor legislation can lead to the imposition of not only administrative, but in some cases criminal liability.

Recently, the labor inspectorate and other similar regulatory bodies have been closely monitoring the activities of employers.

How is it compensated

The issue of payment for overtime work is disclosed in sufficient detail directly in the Labor Code of the Russian Federation.

Payment rules are established by Article No. 152 of the Labor Code of the Russian Federation and are as follows:

The first two hours of working overtime are paid at the standard rate. wages multiplied by a multiplier of 1.5;
all other hours of work following the first two are paid using multiplier 2.

At the same time, the amount of payment for overtime work may also be regulated by the following internal documents of the employer:

collective agreement;
local regulatory legal act;
directly concluded with the employee labor agreement.

But it should be remembered that the provisions of the documents indicated above, which regulate payment and other conditions for performing overtime work, should not worsen the position of the employee.

This moment is reflected in the current labor legislation in the territory of the Russian Federation. If any such violations occur, this automatically makes the document invalid, void.

It is in the interests of the employer to observe the legality of involving their employees in overtime work.

Otherwise, serious problems with the law may arise. Up to the deprivation of the right to engage in a certain type of activity. The same is true with payment.

It must take place in its entirety. It is prohibited to force an employee to work overtime. There are only a limited number of cases in which it is allowed to involve an employee, regardless of his consent.

How limited during the year

The very fact of involving an employee in overtime work is allowed by law. But there are certain time limits. They are valid for one calendar year. It is not allowed to exceed them.

At the moment, the following main restrictions on the performance of work in this mode are set:

exceeding the standard working time for 2 consecutive days should not exceed 4 hours;
the total number of overtime working hours should not exceed 120.

One of the obligations of the employer is to record all overtime hours as accurately as possible.

Since in the future, on the basis of this accounting, wages and overtime pay will be formed. Also, this kind of accounting is strictly required for accounting and tax reporting.

If for some reason the time limit for engaging in overtime work has been exhausted, then the employer has no right to involve the employee in the future.

If there is a need to carry out additional work, which, for some reason, employees cannot cope with during regular hours, the situation should be resolved in other possible ways.

Violation established by law limits threatens the employer with administrative liability in accordance with applicable law.

Duration

Overtime hours are currently limited. The main reasons for this are the following:

increased energy consumption on the part of the employee;
reducing the amount of time allotted for sleep, rest and other necessary activities.

The issue of limiting the allowable amount of time to engage in overtime work is reflected in the Labor Code of the Russian Federation.

According to statistics from other countries (in particular the UK), people who are often involved in overtime work often suffer from cardiovascular diseases. The risk of a heart attack and other serious diseases is also quite high.

It is on the basis of these statistics, as well as medical recommendations, that certain restrictions on the length of overtime work have been established.

Exceeding the established limits is allowed only when performing overtime work in cases where the written consent of employees is not required. For example, this is the elimination of the consequences natural Disasters, as well as various other difficult situations(states of emergency).

Difference from irregular working hours

The term "non-standard working day" means the need to perform some specific work outside the working day.

Also, in some cases, be sure to do it more intensively. Subsequently, all this is compensated by agreement between the employee and his employer.

Such a phenomenon as an irregular working day is regulated by separate articles of the Labor Code of the Russian Federation.

The main legal documents are the following:

article No. 101 of the Labor Code of the Russian Federation;
TK RF.

An important difference between an irregular working day and overtime work is that the employer does not have the right to involve in the performance of tasks that are not defined by the employment contract.

At the same time, with overtime work, it is possible to involve in the performance of various tasks. Regardless of whether they are present in the employment agreement or not.

Also, the very fact of having an irregular working day is necessarily fixed in the concluded labor agreement.

Engagement in overtime work does not require this. This moment is announced directly in Labor Code RF. Therefore, there is no need to prescribe this moment in the contract concluded between the employee and the employer.

But, at the same time, to perform overtime work, it implies the written consent of the employee himself. The irregular working day is prescribed initially in the employment contract.

Therefore, the employee gives consent to work in this way at the time of signing the agreement. Both overtime and irregular working hours must always be accounted for directly by the employer and must be paid accordingly.

The employee and the employer himself must necessarily familiarize himself in advance with all the most significant differences between the two designated concepts. This will avoid the occurrence of all sorts of complex and even conflicting moments, litigation.

Can people with disabilities be involved?

It should be remembered that the right of the employer to involve certain categories of workers in overtime work is limited by applicable law.

For example, under no circumstances is it allowed to involve the following categories of citizens in the work of the type in question:

if the age of the employee is less than 18 years;
if the employee is a pregnant woman;
employees of other categories, which are reflected in the federal legislation.

At the same time, the involvement of disabled people in overtime work, as well as women who have children under the age of 3 years, is allowed only with written consent, regardless of the type of work. A prerequisite is the absence of any contraindications to overtime work.

For each time you perform overtime work, you will need to draw up a separate, special order. It is not allowed to form one order for any specific period. Compliance with this rule is strictly mandatory.

Regardless of the nature of the work performed, the employer is obliged to provide the employee with a choice of compensation: in the form of an additional payment or the provision of additional rest time.

Overtime work is in most cases an emergency measure and employers do not often resort to it. But often the involvement in the performance of such work takes place on an illegal basis. If such incidents are discovered, the employee must contact the labor inspectorate.

Video: Working outside of business hours

The current version of Art. 99 of the Labor Code of the Russian Federation with comments and additions for 2018

Involving an employee in overtime work by an employer is allowed with his written consent in the following cases:
1) if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform (non-completion) of this work may lead to damage or loss of property the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;
2) in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause the termination of work for a significant number of employees;
3) to continue work in the absence of a replacement employee, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

Engaging an employer of an employee to work overtime without his consent is allowed in the following cases:
1) in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
2) when performing socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) water disposal systems, gas supply, heat supply, lighting, transport, communications systems;
3) in the performance of 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 situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases, endangering the life or normal living conditions of the entire population or part of it.

In other cases, involvement in overtime work is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

It is not allowed to involve pregnant women, employees under the age of eighteen, other categories of employees in overtime work in accordance with this Code and other federal laws. Involvement in overtime work of disabled people, women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited by them for health reasons in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature.
The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year.

It is the employer's responsibility to ensure that each employee's overtime hours are accurately recorded.

Commentary on Article 99 of the Labor Code of the Russian Federation

1. The provisions of the commented article establish the procedure for involving employees in overtime work.

Overtime work should be understood as work performed by an employee at the initiative of the employer outside the working hours established for the employee - daily work (shift), and in the case of summarized accounting of working hours - in excess of the normal number of working hours for the accounting period.

Let's try to identify the main features of overtime work.

First of all, it is necessary to single out such a sign as initiative. In this case, we are talking about the manifestation of the initiative on the part of the employer. Thus, if an employee was late at work and carried out his official duties in excess of the length of the working day established for him without a corresponding order from the employer, such work cannot be recognized as overtime, and it will not be subject to appropriate monetary compensation.

The legislator, in the provisions of the commented article, does not fix the procedure for the employer to express the appropriate initiative to involve the employee in the performance of work outside the working hours established for such an employee. It seems that if such a need arises, the employer should issue an appropriate order or order in writing. It is assumed that the order to involve the employee in the implementation of work outside the established working hours for him can be made to the employee orally, followed by drawing up required document. In this case, the consent of the employee to the implementation of overtime work must be expressed in writing. In practice, such consent may look like this: the employer issues an appropriate order to involve specific categories of workers, indicating positions and names for overtime work; employees indicated in the order or order issued by the employer put their signatures in the "acquainted" column and in the "agree" column. Many employers in such orders or orders do not indicate the column or line "agree", assuming that the employee's signature on such a document is the necessary consent. This state of affairs often gives rise to disputes that are resolved in court. It seems to the authors that the presence of these two columns in the order or order to involve employees in overtime work will help to avoid possible disagreements and litigation in the future. At the same time, the employee is entitled by law to refuse to perform overtime work. In this case, the employee, when familiarizing himself with the relevant orders or instructions, next to the signature in the "acquainted" column, should add the word "disagree" and put his signature again indicating the date of affixing such a signature.

In addition, it seems that familiarization (notification) of employees about their involvement in work in excess of the established working hours should be carried out in advance (if the current situation allows it within the framework of production needs), and not "five minutes" before the actual start of such work. .

As the second sign of overtime work, we single out the duration. Overtime work always involves the implementation of the employee's official duties in excess of the length of the working day, shift or working week established for him. Thus, if a working day is set for an employee, a shift of 8 hours, then his work on the initiative of the employer for more than 8 hours should be considered overtime work, which is subject to proper payment in accordance with the provisions of the Labor Code of the Russian Federation. If for some reason an employee is assigned a reduced work week, or the employee works on a part-time basis, then for such a category of employees, overtime will be considered work performed at the initiative of the employer for a longer duration than it is established for him.

As the third sign of overtime work, we note the production necessity. In accordance with the provisions of the commented article, the employer has the right, on its own initiative, to involve the employee in performing work in excess of the working hours established for such an employee only if there is a production need due to relevant factors.

2. The legislator has fixed three cases, in the presence of which it is allowed to involve an employee in overtime work.

The first one is the need to perform (finish) any previously started work, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) during the working hours established for the employee. In this case, the decisive factor is that the failure (non-completion) of this work may entail one of the following consequences:
- damage or destruction of the property of the employer;
- damage or loss of property of third parties, which is currently with the employer (provided that the employer is responsible for the safety of this property);
- damage or destruction of state or municipal property;
- threat to life and health of people.

It should be noted that in the event of litigation on the fact of involving employees in overtime work, the obligation to prove that the need to involve an employee in such work could cause one of the above consequences lies with the employer.

The second case in which the employer has the right to involve employees in overtime work is the implementation of temporary work to repair and restore mechanisms or structures in cases where their failure may cause a significant number of employees to stop working. The situation described is connected with the production necessity in order to avoid further downtime in the work of the enterprise, organization. The main sign in this case is the possibility of termination of work for a significant number of employees of the organization.

The third case occurs when it is necessary to continue work in the event of the non-appearance of the replacement employee. In this case, we are talking about situations where the work does not allow for interruptions. In such a situation, the employer is obliged or, more precisely, is forced to immediately take measures to replace the shift that did not come to work with another employee.

In the event of any disputes related to the legality of the employer's involvement of employees in overtime work and payment for such work, employees, when applying for the protection of their violated rights to the judicial authorities, must remember the statute of limitations for filing such disputes.

So, for example, by the decision of the Supreme Court of the Russian Federation of May 21, 2009 N 21-В09-5 in satisfaction of claims for the recovery of compensation for overtime work, work on weekends and holidays, interest for late payment of wages, compensation for non-pecuniary damage was denied, since the plaintiffs missed the limitation period, they did not provide evidence of valid reasons for missing the deadline for applying.

3. It must be taken into account that the obligatory condition for involving an employee, at the initiative of the employer, in the implementation of overtime work is the consent of the employee. Thus, in cases where the employee does not agree to work in excess of the working hours established for him, then general rule he cannot be called upon to carry out such work. However, the commented article provides for exceptions to this rule.

Engaging an employer of an employee to perform overtime work without his consent is allowed by the legislator in strictly defined cases:
- in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
- in the performance of socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems. The main features of the situation under consideration of the forced involvement of employees by the employer to carry out work in excess of the established working hours are: necessity; unforeseen; violation of the normal functioning of life support systems;
- in the performance of work, the need for which is due to the introduction of a state of emergency or martial law. The introduction of a state of emergency is a temporary measure applied solely for the purpose of ensuring the safety of citizens and protecting the constitutional order of the Russian Federation. In addition, a state of emergency is introduced only in the presence of circumstances that pose a direct threat to the life and security of citizens or the constitutional order of the Russian Federation and the elimination of which is impossible without the application of emergency measures. The main purpose of the introduction of martial law is to create conditions for repelling or preventing aggression against the Russian Federation;
- in the production of urgent work in emergency situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics). As an example, we give a description of urgent work in the liquidation of emergency situations. Urgent work in the liquidation of emergency situations is the implementation of activities for the comprehensive provision of emergency rescue operations, providing the population affected by emergency situations, medical and other types of assistance, the creation of conditions that are minimally necessary to preserve the life and health of people, maintain their efficiency (Federal Law "On emergency rescue services and the status of rescuers"). As extraordinary circumstances, disasters and situations of threat of disaster are singled out;
- in other cases that endanger the life or normal living conditions of the entire population or part of it.

Involving employees in overtime work in other cases other than those considered is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

4. The provisions of the commented article define a list of categories of employees who cannot be involved in overtime work under any circumstances:
- pregnant women;
- employees under the age of 18;
- other categories of workers subject to the provisions of Art. Art. 203 and 264 of the Labor Code of the Russian Federation.

In addition, the legislator has identified a list of categories of workers who can be involved in overtime work only if they have a written consent from them, regardless of the circumstances that have arisen, which determine the involvement in overtime work:
- disabled people;
- women with children under the age of 3 years.

It should be noted that when the specified categories of employees sign their consent to perform overtime work, they simultaneously sign an acquaintance with their right to refuse to perform such work.

If these categories of employees agree to perform overtime work, the health factor of these employees and the absence of contraindications for health reasons must also be taken into account in accordance with a medical certificate issued in accordance with the procedure approved by order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 N 441n.

5. By law, the total amount of work carried out outside the established hours of work is limited to 120 hours per year for each employee.

At the same time, the duration of overtime work for each employee for 2 consecutive days should not exceed 4 hours. Thus, if an employee was involved in overtime work for 4 hours on one day (for one shift), then he can be involved in overtime work no earlier than 24 hours later, i.e. in a day (or in a shift).

The employer is responsible for the violation of the total duration of overtime work in relation to each employee.

According to the provisions of the commented article, the obligation to keep accurate records of the implementation by each specific employee of work in excess of the established working hours during the working month, year is assigned to the employer.

Another commentary on Art. 99 Labor Code of the Russian Federation

3. Since the use of overtime work leads to the excess of the norm of working time, the legislation establishes legal guarantees that ensure its limitation. These guarantees are:

a) establishment of lists of circumstances under which the written consent of the employee is required or not required to involve an employee in overtime work;

b) the introduction of a complicated procedure for engaging in overtime work in other cases;

c) limiting the duration of overtime work for one employee;

d) establishment of a circle of persons who cannot be involved in overtime work.

11. The maximum limits for the duration of overtime work established by part 6 of the commented article: 4 hours. for two consecutive days and 120 hours. per year - cannot be exceeded.

Failure by the employer to keep accurate records of overtime work performed by each employee is a violation of labor legislation and should entail the responsibility of the employer, but cannot lead to infringement of the rights of the employee. The employee has the right to demand payment for overtime work even if they are incorrectly executed or not taken into account.

Overtime work is paid at an increased rate (see article 152 of the Labor Code and commentary to it).

Consultations and comments of lawyers on Article 99 of the Labor Code of the Russian Federation

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In the article, we will consider what is meant by overtime work, what guarantees and compensations are due to employees, how to apply for involvement in it, and, most importantly, how to correctly calculate and pay for such work.

What kind of work is considered overtime?

Overtime work complies with the conditions: (part 1 of article 99 of the Labor Code of the Russian Federation):

performed at the initiative of the employer;
it goes beyond the limits of the length of working time established for the employee - daily work (shift).

If an employee is delayed at work on his own initiative, such work is not considered and is not paid as overtime (Letter of Rostrud dated 18.03.2008 No. 658-6-0).

Also, the performance of labor duties within the framework of an irregular working day is not recognized as overtime work.

If the organization has adopted a summarized accounting of working time, then in this case, overtime is considered to be work established in excess of the normal number of working hours for the accounting period. The employer needs to define in the rules of the internal work schedule accounting period (month, quarter or other period up to a year). This is necessary for the correct calculation of hours worked by the employee overtime (Article 104 of the Labor Code of the Russian Federation).

Involvement in overtime work should not be systematic, it can occur sporadically in certain cases (letter of Rostrud dated 07.06.2008 No. 1316-6-1).

Length of overtime

The normal working time is 40 hours per week (Article 91 of the Labor Code of the Russian Federation). The duration of overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year (part 6 of article 99 of the Labor Code of the Russian Federation).

Tip one: v reflect the time worked by the employee overtime in the timesheet (for example, in the form N T-12 or N T-13, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1). The obligation of the employer Ensure accurate records of overtime for each worker. Overtime hours in the timesheet, mark the letter code "C" or the number "04", under which the number of hours of processing is indicated.

True, for some categories of workers, a reduced working time is established, which is normal for them (Article 92 of the Labor Code of the Russian Federation). These include, in particular:

minor workers - from 24 to 35 hours a week, depending on age;
disabled people of group I or II - no more than 35 hours a week;
employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful conditions labor of the 3rd or 4th degree or dangerous working conditions - no more than 36 hours per week;
women working in the regions of the Far North (Article 320 of the Labor Code of the Russian Federation);
teachers (Article 333 of the Labor Code of the Russian Federation);
health workers (Article 350 of the Labor Code of the Russian Federation).

The rules regarding overtime work apply both to employees at the main place of work and to part-time workers.

Example 1 . The accountant has a five-day working week and an eight-hour working day from 9.00 to 18.00 (with a lunch break from 13.00 to 14.00). The manager asked the accountant to stay until 20.00 to prepare a report for him. The time interval from 18.00 to 20.00 in this case is overtime work.

Example 2 The locksmith works 5 days a week - from Monday to Friday from 9.00 to 18.00. To eliminate the accident, he was called to work on Saturday from 10.00 to 20.00. Does this count as overtime work?

No, this is considered work on a day off and is regulated by Art. 153 of the Labor Code of the Russian Federation. Thus, if a locksmith receives a salary and has worked out a monthly norm of working time, then his work on a day off must be paid in the amount of at least double the hourly rate in excess of the salary (part 1 of article 153 of the Labor Code of the Russian Federation). Work performed on non-working holidays is also not considered overtime.

Who should not be required to work overtime

The following employees are prohibited from working overtime:

pregnant women (part 5 of article 99 of the Labor Code of the Russian Federation);
persons under the age of 18,

The exception is:

certain categories of creative workers (Article 268 of the Labor Code of the Russian Federation). Their List was approved by Decree of the Government of the Russian Federation of April 28, 2007 N 252;
athletes, if the collective or labor contract, agreements, local regulations establish cases and procedures for engaging in overtime work (part 3 of article 348.8 of the Labor Code of the Russian Federation);
employees during the period of validity of the student agreement (part 3 of article 203 of the Labor Code of the Russian Federation);
other employees (as a rule, restrictions are established for medical contraindications, for example, for persons with an active form of tuberculosis - Decree of the Council of People's Commissars of the USSR of 01/05/1943 N 15; drivers admitted to driving vehicle as an exception due to a special state of health, - Sanitary rules for occupational health of car drivers, approved by the Ministry of Health of the USSR on 05.05.1988 N 4616-88).

In addition, for some categories of employees there is a special procedure for engaging in overtime work. The employer is obliged:

obtain the written consent of the employee;
make sure there are no medical contraindications;
familiarize employees against signature with the right to refuse to perform overtime work.

Such employees include (part 5 of article 99, article 259, article 264 of the Labor Code of the Russian Federation):

disabled people;
women with children under the age of three;
mothers and fathers raising children under the age of five without a spouse;
workers with disabled children;
employees caring for sick members of their families in accordance with a medical report;
guardians (custodians) of minors.

Involvement in overtime work with the consent of the employee and without his consent

By order of the employer, an employee without his consent can be involved in overtime work: (part 3 of article 99 of the Labor Code of the Russian Federation):

to prevent a catastrophe, industrial accident, eliminate their consequences;
industrial accident or liquidation of their consequences;
to eliminate the circumstances due to which the centralized systems of water, heat and gas supply, transport and communications do not function;
in the event of a state of emergency or martial law and in other emergency cases that threaten the population (fires, floods, etc.).

To bring to work on the specified grounds the consent of the trade union organization, since these circumstances are extraordinary. For refusal to perform such work, an appropriate act is drawn up, and the employee is subject to disciplinary liability.

With the written consent of an employee, an employee can be involved in overtime work in the following cases (part 2 of article 99 of the Labor Code of the Russian Federation):

if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform this work may result in damage or destruction of the employer’s property or endanger life and health of people;
during temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction can cause a stoppage of work for many employees;
to continue work if the replacement employee does not appear, if the work does not allow a break.

The employer is obliged to familiarize certain categories of employees with the right to refuse such work against signature. In the Ruling of November 14, 2006 in case N 4-B06-31, the Supreme Court of the Russian Federation indicated that Art. 371 of the Labor Code of the Russian Federation provides for the obligation of the employer to make decisions taking into account the opinion of the relevant trade union body, even if he is not a member of the trade union.

Tip two: verbal agreements can lead to unnecessary disputes. To avoid this, take the position that all employee-employer agreements are documented. Issue an order for involvement in overtime work and familiarize the employee with it. A unified form of such an order has not been approved, so the employer has the right to develop it independently. In the order, indicate the reason for involving the employee in overtime work, the date the work began, the last name, first name, patronymic of the employee, his position and the details of the document in which the employee expressed his consent to be involved in such work.

Tip three: if the collective agreement or other local regulatory act establishes the amount of the additional surcharge, then indicate this amount in the order. The amount may also be determined by agreement of the parties. Overtime work can be compensated by an increased wage or additional rest time at the request of the employee (Article 152 of the Labor Code of the Russian Federation). If the employee has decided on the form of compensation, include this item in the order as well. Familiarize yourself with the order of the employee under the signature. By the way, the legislation does not oblige the employer to provide additional rest at a time convenient for the employee. However, the parties can always agree.

Additional rest time

At the request of the employee, payment for involvement in overtime work can be replaced by the provision of additional rest time. How long should this rest be?

Rest time cannot be less in duration than the time worked overtime (152 of the Labor Code of the Russian Federation). Thus, if an employee has worked overtime for four hours, then the additional rest time provided to him as compensation must be at least four hours. Overtime work in this case is paid in a single amount.

Additional rest time is not paid in any way and is provided on the basis of an order (instruction) of the employer, with which the employee must be familiarized against signature. By the way, it may not necessarily be a day or a shift. As practice shows, depending on the volume of processing, it can be an hour or several hours.

If the employee is given a whole day of rest, then in the time sheet it should be reflected in the letter code "NV" or the digital code "28" - as an additional day off without pay (Resolution of the State Statistics Committee of Russia dated 05.01.2004 N 1). But the situation when the provided rest time is measured not in days, but in hours or minutes, is not provided for by the Resolution and there is no corresponding code. You can indicate in the time sheet only the time actually worked per day, or independently develop a designation for such a case and fix it in a local regulatory act.

Key points related to overtime work:

ask for the written consent of the workers and the opinion of the elected body of the primary trade union organization;
check whether, according to the medical report, the employees involved are not contraindicated to work overtime;
compensate for work in excess of normal working hours;
Reflect in the collective agreement or other local regulatory act the procedure for attracting employees to work overtime, providing extra days rest and the mechanism for calculating the cash compensation for overtime (for example, whether increased overtime pay will include bonus payments);
keep an overtime log and use it to keep track of employees not working more than 120 hours a year.

In case of violation of the procedure for attracting an employee to overtime work, the employer is liable in accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation is a fine from 30,000 to 50,000 rubles, and an official who committed a violation - in the amount of 1,000 to 5,000 rubles. In case of committing a similar violation repeatedly - under Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Everything - learn how to competently formalize labor relations from hiring to dismissal.

In general, in order to involve an employee in overtime work, the consent of the employee is required, but in some cases such consent may not be obtained. In this article, explanations will be given regarding the legality of involving employees in overtime work without the consent of the employee himself in 2018.

What is overtime work?

According to Art. 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 working hours established for the employee: daily work (shift), and in the case of summarized accounting of working hours, in excess of the normal number of working hours for the accounting period.

The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year.

Calculation of overtime pay

Overtime pay is regulated by art. 152 of the Labor Code of the Russian Federation:

In the event that night work is overtime, payment is made taking into account night work.

Example:

Loader Grishin G.G. On November 2, 2017, I had to work overtime (from 18:00 to 20:00).

Salary Grishin G.G. 10000 rubles.

In November 2017, 21 working shifts.

The duration of the working day is 8 hours.

Surcharge calculation:

- for the first 2 hours (18:00-20:00): (10000/21)/8*50%=59.52*2(hours)=119.04 rubles.

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How is overtime pay taxed?

In accordance with the tax legislation of the Russian Federation, the additional payment made for overtime work is not a payment exempt from taxation and insurance premiums.

The employee will be paid the amount, taking into account the deduction of personal income tax.

Overtime work requiring employee consent

In accordance with Art. 99 of the Labor Code of the Russian Federation, it is allowed to involve an employee with his consent in overtime work only in the following cases:

if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform (non-completion) of this work may lead to damage or destruction of the employer's property ( including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;
in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause a significant number of employees to stop working;
to continue work if the replacement employee does not appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

In some cases, overtime work is allowed without the consent of the employee (Article 99 of the Labor Code of the Russian Federation):

in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
when performing socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems;
in the performance of 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 that put under threat to the life or normal living conditions of the entire population or part of it.

Contraindications for overtime work

In accordance with Art. 99 of the Labor Code of the Russian Federation cannot work overtime or may not work:

Responsibility of the employer for violation of the law regarding overtime work

Violations when involving employees in overtime work refers to a violation of labor legislation, which entails the imposition of a penalty in accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation:

Person who violated the law	The amount of the administrative fine (rub.)
Violation detected for the first time
Executive	1 000 – 5 000
	5 000 – 10 000
	1 000 – 5 000
Entity	30 000 – 50 000
Violation re-discovered
Executive	10,000 - 20,000 or disqualification for 1-3 years
Official (accounting violation)	10,000 - 20,000 or disqualification for 1-2 years
Individual entrepreneur	10 000 – 20 000
Entity	50 000 – 70 000

Responsibility of the employee for violation of the law regarding overtime work

In the event that the employee has provided his written consent to overtime work, but has not started work, the employer has the right to apply a disciplinary sanction against this employee.

Questions and answers

I am 6 weeks pregnant. My shift is forced to urgently leave for family reasons. The director says there is no one to work. Does he have the right to make me work for my shift?

Answer: No, your director is absolutely wrong. In accordance with Art. 99 of the Labor Code of the Russian Federation, pregnant women are not involved in overtime work, and the gestational age is not specified. Thus, the director has no right to involve you in overtime work.

My child is 2.5 years old. The director wants me to work overtime. Can I refuse?

Answer: According to Art. 99 of the Labor Code of the Russian Federation, women with children under the age of 3 years can be involved in overtime work only with their written consent. Without your written consent, no one has the right to involve you in overtime work.