Overtime work is recognized as work that is carried out at the initiative of the employer in a time period that extends beyond the accepted working hours. The same type includes work that exceeds the normal number of working hours during the accounting period.
When applying the daily method of recording working hours, all work that is carried out in excess of the established working day also applies to overtime. It is regulated by the provisions of Art. 99 Labor Code of the Russian Federation. Let's talk about this in more detail.
How are workers attracted to such work?
Most often, a separate order is issued regarding the need to carry out overtime work, and it indicates the reasons for the need to organize work outside the shift and indicates the persons involved in the work. Under certain circumstances, there may not be an order, and employees begin work on the basis of an oral order from management.
This is a completely acceptable practice, for example, if the need for work was identified at a time when persons with the authority to issue orders were not on site. In this case, the work is also recognized as overtime and paid accordingly.
Overtime work is recognized in all cases when it was carried out with the knowledge of not only the employer, but also the immediate supervisor. This may be a foreman, a shop manager, and other representatives of the management team, but not the entire management.
In any case, involvement in overtime work is allowed only with the consent of the employee in writing . Work is recognized as such regardless of whether it corresponds to the employee’s job function.
In this case, recognition of the very fact that the work performed by a certain employee is overtime does not mean that it is automatically recognized as necessary. Here we are talking about the fact that the employer’s administration agrees with the responsibility for organizing such work.
How a day off becomes a working day
In cases where the employee’s consent is not required, the employer has the right to draw up an order and order that it be notified to employees who need to go to the workplace. But if consent must be obtained, then the boss does not have the right to force the employee to go out on a non-working day, but can notify him of the need to do this.
In this case, the employee studies the order and writes a statement of his consent to work outside of class hours, and also signs the order or addition directly.
Without an order, the employer does not have the right to involve employees in work outside of working hours.
If an employee refuses to go to work on a day off, he must notify his manager in writing. When the consent of not only the employee, but also the trade union is required, the order is first signed by the employee, and then sent to the trade union organization.
If there are no quarrels with each other on both sides, a new order is written and approved. For each working day, instead of a day off, a separate order is written.
ATTENTION! It is prohibited to draw up a work plan for employees on weekends and holidays several days in advance.
What work is not overtime?
Work is not recognized as overtime in cases where the actual duration of daily work on certain days may not correspond to the duration of the scheduled shift. Overtime is also not recognized as work that goes beyond the working day when working the standard hours in the case of a flexible work schedule.
Also, overtime work above the accepted working day for employees with irregular working hours is not recognized if such a regime is compensated by additional leave of more than three calendar days. Its duration in each specific case is determined by the collective agreement or internal regulations.
Employers in the Russian Federation really like to use irregular working hours in order to turn their workers into uncomplaining serfs. Many companies adopt internal policies aimed at identifying employees who are willing to work as long as management says, showing loyalty, and opposition to this approach indicates that the person is subject to dismissal at the first opportunity.
Overtime work during vacation without pay does not apply to overtime work that is carried out in a part-time mode that involves working beyond the accepted working hours. Also, work beyond the time stipulated by the employment contract, but within the established working day, in the case where the employee works part-time.
Work that combines job responsibilities is not considered overtime.
Contractors who work on the basis of so-called civil contracts have nothing to do with the rules on overtime work. In essence, such specialists are simply not subject to the rules related to internal labor regulations and everything related to labor discipline.
The essence of the conflict
There would be no need to write this material if not for the word “initiative” - it was this that became the primary source of the conflict between an employee and his employer within the framework of our topic. Many employees and even directors (inexperienced, let’s make a reservation) are inclined to believe that if he (an employee), working the classic hours from 09:00 to 18:00 with a lunch break of 1 hour, five days a week, decided overnight to work during the week, and even several times until 19:00 a day, then for this he is entitled to a salary increase. This is not entirely true... Let's first figure out who exactly initiated these delays. If we are talking about the employer’s initiative, then, in theory, there should be a corresponding paper that will spell out: a) production necessity as the reason for working overtime; b) the amount of time required to satisfy this production need; c) the amount of payment for additional hours worked. With this document, the relationship between the two parties should become more transparent. Let’s imagine a situation where such a document is not available, and there is no agreement between the employee and his manager that he will work beyond the established working hours. In this case, the employee can hardly count on an increase in his salary, because in this case, there is not only an additional agreement to the employment contract, but also, most importantly, the initiative of the employer. Without it, the act of “high performance”, at best, will be regarded by the director as the employee’s responsible attitude towards the performance of his official duties. He can reward his subordinate with a bonus, but only if he wishes. By the way, the director has the right to pay bonuses exactly as many times and in as many quantities as he pleases, but that’s a completely different story.
Details of the procedure for attracting overtime work
So, this is done with the written consent of the employee, but permission from the representative body of employees is not required in certain cases established by the article in question:
- when there is a need to perform work that, due to some problems, could not be completed within the established working hours, if failure to complete the work may result in damage or destruction of the employer’s property, state or municipal property, or create a threat to the life and health of people;
- when carrying out temporary work, when a malfunction of mechanisms or buildings may cause the cessation of work for a significant number of workers;
- to continue work in the absence of a shift worker, if the work does not allow a break.
His involvement in overtime work does not depend on the consent of the employee in the case of work carried out:
- necessary to prevent a catastrophe, accident or eliminate the consequences of a man-made accident or natural disaster;
- to eliminate circumstances that impede the normal operation of water supply, gas supply and all similar systems of public importance;
- the need for which is associated with the introduction of a state of emergency or martial law and the like.
For all other reasons, involvement in overtime work is possible only with the written consent of the employee and taking into account the position of the elected body of the primary trade union organization.
In any case, it is prohibited to employ pregnant women, as well as persons under 18 years of age, to work outside the working hours. Disabled people and mothers with children under three years old can be involved in overtime work, but only with their written consent and if this is not prohibited by doctors due to the health status of such workers.
Such categories must be separately informed by signature of their right to refuse to work outside the labor schedule.
The total duration of overtime work cannot exceed 4 hours over two consecutive days and 120 hours per year for each employee.
It is the employer's responsibility to ensure that everyone's overtime hours are accurately recorded.
The Labor Code of the Russian Federation establishes a double guarantee against the unreasonable involvement of workers in overtime work. It is expressed in the fact that the signature of the employee himself is not enough. If there are no circumstances related to the need to eliminate some threat and listed above, then the opinion of the representative body of workers is also needed.
It should be noted that the unreasonable involvement of employees in overtime work is actually not liked by everyone, and first of all, by the employers themselves. The point here is not about any sanctions in the event of revealing the illegality of using the opportunities provided by the article in question, but about the fact that they are paid at increased rates. And not paying is extremely difficult from all points of view. Therefore, with great enthusiasm, employers are leaning on the application of provisions on irregular working hours.
If at the very beginning of this century only special categories of workers had irregular working hours, now it has become so even for cleaners. At the same time, the absence of a clear time frame for irregular working hours is understood only in one direction: workers cannot come to the workplace a little later, but they are forced to stop the working day when the employer deems it necessary.
How to formalize a refusal under the Labor Code of the Russian Federation?
If the employer does not need to take into account the employee’s consent, he must only inform him of the order on irregular working hours and request a signature on familiarization.
When the consent of an employee is necessary, he must be familiarized with the order.
If the employee agrees to off-hour work, he signs the agreement statement, in the order itself or in an additional appendix.
If the employee refuses additional work, he must also notify the manager in writing.
If an agreement between a person and a trade union is necessary, the draft decree is first sent to the employee, and then to the members of the trade union organization. Provided that both entities agree and approve the project, another order is issued and again submitted to the employee.
In each new case, the order is reissued. It is unacceptable to draw up planned work for any period and a list of employees to carry it out.
To refuse overtime, you should collect documents proving the length of the working day:
- time sheet;
- employment contract;
- graphics;
- internal routine.
Having collected all the documents, you need to notify your superiors in writing about your refusal to work overtime. You can always count on the assistance of the labor inspectorate and the trade union.
Sample refusal of overtime work – word.
What an employee needs to know
An employee who does not want to work overtime does not have to fear disciplinary action for his refusal. They can follow only in two cases:
- if the subordinate, in the presence of one of the above-described emergency circumstances, ignored the order of his superiors and did not work overtime;
- if the employee agreed in writing to overtime, but did not begin to perform the necessary duties (without a good reason).
And no matter how serious the circumstances that led to the need for overtime work, the law strictly regulates its duration. Processing should not last more than:
- 4 hours – for 2 days in a row.
- 120 hours – within 1 year.
Accurate records of overtime work must be kept by the employer (for each employee).
Features of work
When an employee agrees to go to work on his own day off, a written agreement must be drawn up between him and the employer, which the employee must sign. An order is also required, which will indicate the amount of payment to the employee for overtime work.
Some careerists are not against going to work on a day of rest, but it is still necessary to observe the limit on the number of such exits per year. Thus, the Labor Code states that in one calendar year an employee has the right to go to work on his day off for no more than 12 days.
ATTENTION! Such exits must be paid in double amount or, at the request of the employee, half of the payment can be replaced by an additional day off.
Position of the Constitutional Court of the Russian Federation
The Constitutional Court, in its ruling No. 1622-О-О dated 12/08/2011, established an alternative definition, calling this type a special case of work performed under conditions deviating from normal.
This formulation was given in order to argue the thesis that overtime work is subject to increased payment. It is especially noted that this approach is fully consistent with Art. 4 of the European Social Charter of 1996, which confirms the right of workers to increased pay for work outside the working day in order to ensure the effective implementation of the right to fair remuneration for work.
Increased payment for overtime work is aimed at compensating for labor costs in conditions of increased stress on the body caused by overwork due to the employee working during the time designated for rest.
