The procedure for inviting an employee to work overtime

When being late at work is not overtime
How employers avoid paying overtime
What evidence will confirm the fact that an employee is involved in overtime work?

Polyak Maria Ivanovna,

lawyer, deputy chairman of the presidium of the Bar Association "Gribakov, Polyak and Partners"

In Russia, involving employees in overtime work is quite common. But it is also worth recognizing that workers often demand payment for any delay at work, regardless of whether it is overtime or not.

What is overtime work?

The main standards according to which people are required to work overtime are contained in Article 99 of the Labor Code of the Russian Federation. Overtime is considered to be work that meets the following criteria:

If its implementation exceeds the duration of a regular shift, or the required amount of hours per month.
This work is carried out at the request of the manager. If an employee independently decides to remain at work at the end of a shift, then this work is not overtime and is not subject to payment.
If the work is performed by an employee with whom there was no initial agreement on exceeding working hours (Article 101 of the Labor Code).

It is especially important to take the latter into account because irregular work and overtime have been confused due to the lack of specific language in the legislation in previous years.

But now the Labor Code contains precise regulations: if we are talking about irregular work, then we cannot talk about any overtime work, because in such a circumstance, overtime is not considered an exception, but is a working condition.

Overtime work is work that an employee performs beyond the allotted time at the request of the manager.

For example, if everyone in an organization works from 10:00 to 19:00, and the boss asks the employee to stay until 20:00, then the additional hour is considered overtime.

A worker who stays extra time after a work shift can count on increased pay for those hours. Or the manager will have to provide additional time for rest.

Find out how overtime hours are recorded in our article.

One driver's case

Development of the dispute. 03/05/2004 D. was hired as a delivery driver at one of the largest meat processing plants in the capital. According to the work schedule and in accordance with the internal labor regulations of the organization, D.’s work day was standardized: it began at 6.30 and ended at 14.30. In fact, the working day lasted from 5.30 - 6.00 hours to 15.00 - 16.00 hours. Thus, D. worked overtime at least 2 hours a day.

However, after resigning on 06/06/2011, D. found out that during the final settlement he was not paid for overtime work for the entire period of his career in the organization. On June 15, 2011, he sent a claim to the employer demanding payment for overtime work, but, not receiving what he wanted, he was forced to go to court.

Employee position. To confirm that he was involved in overtime work every day without additional pay, D. presented the court with waybills with a note about the car leaving the garage and returning it after the end of the working day.

The fact that he demands payment for overtime work for the entire period of his work in the organization, that is, for six years, only after his dismissal D. argued as follows.

By virtue of Art. 136 of the Labor Code of the Russian Federation, when paying wages, the employer is obliged to notify each employee in writing about the components of the wages due to him for the corresponding period, the amount and grounds for deductions made, as well as the total amount of money to be paid. However, according to D., the defendant did not comply with the above requirements, and he was not provided with monthly data on the components of his salary. And since he received a monthly salary by transfer to a bank account in the amount of over 30,000 rubles. (although the salary according to the employment contract was 12,000 rubles), I believed that the employer fulfills its obligation to pay wages on time and in full in accordance with Art. 22 Labor Code of the Russian Federation.

D. first received information about the components of wages (for March 2011) and the procedure for calculating it only on 04/18/2011 at a personal request (that is, by chance, since the calculation was requested due to the fact that the employer changed the amount of the incentive payment for delivery products to chain stores in Moscow and the Moscow region and D.’s wages dropped sharply), which is confirmed by the inscription “print date 04/18/2011 -10:43:10” on the specified calculation. In this calculation, there was no column for “overtime pay.”

05/17/2011 D. took the calculation of the freight forwarder’s salary for April 2011, in which the column “overtime payment” was also missing. Then, on 05/31/2011, he took the forwarder’s salary calculations for December 2010, January and February 2011. The column “overtime payment” was again missing from them.

In accordance with Article 140 of the Labor Code of the Russian Federation, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. According to D., he believed that the employer would pay him for overtime work in full, making a calculation upon dismissal. But this was not done.

Thus, having learned about the violation of his right to payment for overtime work, D. went to court before the expiration of the provisions provided for in Art. 392 of the Labor Code of the Russian Federation for a three-month period.

Employer's position. The employer pointed out that there was no order (instruction) to involve D. in overtime work. Accordingly, the plaintiff does not have unambiguous evidence of his involvement in overtime work, indicating the grounds and its duration.

Moreover, the plaintiff missed the deadline for filing a claim with the court to recover payment for overtime work for the period from 06/01/2008 to 03/16/2011. And in the period from March 16, 2011 to the date of D.’s dismissal, in accordance with clause 5.5 of the Internal Labor Regulations, drivers delivering products to retail outlets were provided with a summarized recording of working hours. The billing period is one year.

Court verdict. At the end of 2011, the Lefortovo District Court of Moscow rejected D.’s claim because he did not provide evidence that the employer involved him in overtime work in accordance with Art. 99 Labor Code of the Russian Federation. The waybills submitted by the employee cannot serve as independent evidence of his involvement in overtime work, since they do not contain information about the established time of work according to the schedule and the sequence of tasks required to record time as a worker, and there is no separate indication of the time of actual departure and return. indicates the assignment to the employee of the relevant work during a given time and the actual performance of labor duties during the entire given time, while payment for work in accordance with the employee’s time sheets is not disputed.

When is it permissible to involve an employee?

Taking into account Article 99 of the Labor Code, an employee can be allowed to work overtime if he signs an agreement or does not do so.

If an employee's signature is required, the circumstances must be as follows:

If the work was not completed during the day, and its incompleteness can lead to poor results. In this case, such results mean damage to property or the health of workers being in danger.
If it is necessary to complete any work to troubleshoot equipment problems that could lead to the same damage to valuables.
In the case when you need to do work for an employee who did not show up for shift. This is approved by law if the suspension of work is fraught with a negative outcome of the labor process.

In addition to these circumstances, an employee may be involved in other cases. To do this, management must coordinate this decision with trade unions or other authorities that defend the rights of workers in organizations (Article 372 of the Labor Code of the Russian Federation) .

The employee's consent is not required in the following cases:

To eliminate industrial emergencies.
If it is necessary to resume work that is of great importance to the population. This could be the functioning of heating systems, electricity, etc.
To eliminate the results of disasters such as epidemics, fires, etc.

Business trips for pregnant women

The legislation provides for the performance of labor duties not only within a certain workplace, enterprise or organization, but also the performance of a certain amount of work outside the workplace.

This labor regime is based on the concept of a business trip. These are employee trips that are carried out by employees of enterprises on the basis of an order from the employer.

These trips are organized to carry out a specific work assignment outside the workplace for a strictly defined period.

Labor legislation defines a strict prohibition that applies to sending special categories of employees on business trips. The list of special categories also includes pregnant women who are employees of various enterprises and institutions.

The ban on sending pregnant women on business trips is established by labor legislation for certain purposes:

to protect the health of pregnant women;
in order to ensure the normal course of pregnancy;
to ensure normal conditions for the birth of a child;
in order to ensure the birth of healthy children.

Accordingly, labor legislation prohibits sending pregnant women on business trips, even if they have their personal consent to travel on a business trip.

Can disabled people be involved?

Disabled people and women who have children under three years of age are allowed to work overtime, but only taking into account certain rules. These citizens must provide their written consent to the boss.

The manager, in turn, is obliged to familiarize these citizens with their right to refuse to perform overtime work (Part 5, Article 99 of the Labor Code). Disabled people and young mothers must sign a document stating their rights.

Who are people with family responsibilities?

Labor legislation clearly defines the circle of persons who are recognized as persons with special family responsibilities. Such categories of citizens are determined in the process of legal regulation and social security. This category includes parents, adoptive parents, trustees, guardians, and relatives. The category of workers and employees of enterprises who have family responsibilities includes the following persons:

women raising children under three years of age;
parents raising children with disabilities;
parents who raise children independently without the participation of a second spouse, and the age of such children should not exceed five years;
persons who care for sick relatives, and an important condition is the availability of a medical report on the health status of the sick relative.

Previously, labor guarantees were provided only to women, but now similar guarantees and rights are provided to any persons who have certain family responsibilities. Such obligations of citizens may arise based on the following circumstances:

official registration of marriage;
pregnancy;
presence of direct family ties;
the presence of a legal act or court decision.

Registration procedure

Actions to attract a worker should be as follows:

To begin with, the employee needs to be sent a notification, which includes a notification that he is needed to perform overtime work.

This paper should contain the date when the service will be needed, as well as the amount of payment for it.

In addition, the notification must make a note that the citizen is free to refuse this work. Refusal is possible if circumstances allow asking consent.

The employee writes consent.

There is no one-size-fits-all model of consent. For this reason, heads of organizations are allowed to prepare their own forms.

For example, an employee may write a statement containing information about his consent to overtime work . The application must indicate the date and sign.

If the worker gives a positive answer in writing, then the manager issues an order that the worker will perform a certain activity.

This document can be drawn up in any form. Additional hours will be recorded on the required paperwork.

When the employee has completed his task, accruals should be made. This could be an increase in salary, or hours of rest.

Procedure for recording overtime working hours

Legislation requires the management of the company to compulsorily record overtime hours for each employee, in order to compare them with current standards and pay. To do this, use a working time sheet, where this information is entered using an alphabetic (C) or numeric (04) code.

Without the employee's consent

A positive response from an employee is not required to attract him to work in some cases:

if it is necessary to take any action to avoid an emergency;
to fix a problem in the heating (and other) system;
upon the introduction of martial law.

If such reasons arise, the employee is obliged to follow the instructions of management. If an employee does not meet his superiors halfway, then a report . In addition, the employee will be subject to disciplinary action.

Read our article on how to bring disciplinary action.

If remuneration is provided for the employee performing overtime work, then its amount must be indicated in the order. The figure can be approved by mutual agreement of the employee and the boss.

This work can be compensated by increasing wages or giving the employee extra days off .