Worker with irregular working hours. What does irregular working hours mean for an employer? What does the existing Labor Code say about irregular working hours?

An irregular working day (IWD) is a work regime in which the employer has the right from time to time to involve employees in work beyond the established working hours (Article 97 of the Labor Code of the Russian Federation). Positions for which the NSD is established are prescribed in the local regulatory act of the organization or the collective agreement (Article 101 of the Labor Code of the Russian Federation). Based on an oral or written order from management, employees who work in the NSD mode must perform their labor functions even after the end of the working day. At the same time, the employer does not need to obtain their consent (as when inviting employees to work overtime).

The duration and frequency of processing during NSD is not established by law. The Labor Code of the Russian Federation only states that the employer has the right to involve employees in such work occasionally. But in any case, the employee’s right to rest should not be infringed.

There is no additional cost for processing at NSD. Instead, the employee is entitled to additional annual paid leave of at least 3 calendar days (Article 119 of the Labor Code of the Russian Federation). Accordingly, the time worked by the employee may not be reflected in the time sheet.

By the way, in the general case, additional allowance for work in the NSD regime can be replaced by monetary compensation at the request of the employee (Article 126 of the Labor Code of the Russian Federation).

Documentation of positions with irregular working hours

First of all, the fact that the employee will work for the company under the NSD regime must be recorded in his employment contract (Articles 57, 101 of the Labor Code of the Russian Federation). If initially the contract with the employee did not include the provision for NSD, and now you want to formalize his transfer to a position with irregular working hours, then you will need to draw up an additional agreement to the contract and indicate in it all the changing conditions (including the NSD regime), or even compose new edition employment contract(Article 72, 72.1 of the Labor Code of the Russian Federation).

In addition, it is also desirable to stipulate in the internal labor regulations (ILR) that certain employees in the organization work in the NSD mode (Article 189 of the Labor Code of the Russian Federation). And the list of positions of workers with irregular working hours can be an appendix to the PVTR. The manager can approve such an application by a separate order for positions with irregular working hours.

For him, to perform overtime work (Article 99 of the Labor Code of the Russian Federation) or if he works on irregular working hours (Article 101 of the Labor Code of the Russian Federation). Let’s say right away that employees do not always correctly understand what working with irregular working hours means. Quite often, they believe that working in a named mode means that they can come to and leave work as needed. However, it is not. In this article we will talk about irregular working hours and explain how work is structured in this mode.

The working hours of creative workers differ significantly from the generally accepted eight-hour workday, as they depend on the schedules of performances, performances and rehearsals. In addition, such workers often have to go on tour to other cities. Nevertheless, the standard working time is, as a general rule, the same for all workers, including creative ones, and cannot exceed 40 hours per week (Article 91 of the Labor Code of the Russian Federation), unless the creative worker belongs to the category of persons for whom reduced working hours are established. weeks. Let us recall that these are (Article 92 of the Labor Code of the Russian Federation):

minor workers under the age of 16 (no more than 24 hours per week);

teenagers from 16 to 18 years old (no more than 35 hours per week);

workers - disabled people of group I or II (no more than 35 hours per week);

employees whose working conditions at their workplaces, based on the results of a special assessment of working conditions, are classified as harmful 3rd or 4th degree or dangerous working conditions (no more than 36 hours per week).

Standard working hours can be developed under various working conditions, including irregular working hours.

The concept of irregular working hours

The definition of this operating mode is given in Art. 101 Labor Code of the Russian Federation. This is a special regime in which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

It should be noted that many employers, referring to this norm, force employees to work overtime every day, covering up overtime work with irregular working hours. However, labor legislation considers irregular working hours not as an extended working day compared to the generally established one, but as a special procedure for the distribution of working time within the working day and (or) working week. Its specificity lies in the fact that in most cases the employee is subordinate to the general operating hours of the organization, but at the same time he can stay at work to perform his job functions beyond a certain length of the working day (shift) or come to work before the start of work (shift) (Appeal ruling of the Moscow City Court dated February 14, 2017 in case No. 33-5691/2017).

Note: The nuance of working in irregular working hours is that the employee is involved in work beyond the established working hours occasionally, that is, infrequently.

That is, if in an institution the working day begins, for example, at 8.00 and ends at 17.00, then an employee with irregular working hours must come to work and leave it at the specified time.

The establishment of irregular working hours does not imply a flexible work schedule. That is, if an organization starts working at 8.00, the employee cannot come, for example, at 9.00 or 10.00 and leave before the end of work. And this is confirmed by judicial practice.

Thus, an employee was reprimanded for being 25 minutes late for work. He appealed to the court with a demand to declare the collection illegal, since he believed that there could be no delay, since he had an irregular working day. The court, refusing the employee, indicated that irregular working hours involve work outside established mode working hours and does not provide for the release of the employee from work within the established working hours, as well as the arbitrary independent determination by the employee of the time of arrival and departure from work, the admission of lateness to work (Appeal ruling of the Moscow City Court dated November 26, 2015 No. 33-44271/ 2015).

Who can have irregular working hours?

The employer independently determines the list of employee positions for which irregular working hours are established. It is important that such a list is enshrined in a collective agreement, agreement or local regulation adopted taking into account the opinion of the workers’ body.

Typically, such a list includes positions of employees whose duration of work cannot be accurately calculated (heads of institutions, business personnel and workers technical services), as well as those who plan the implementation of assigned tasks at their own discretion and whose working day is divided into intervals of unspecified duration.

Overtime compensation

Work on irregular working hours is compensated to the employee only by additional leave. Moreover, the right to such leave arises regardless of whether the employee was involved in work beyond the norm or not. If the employment contract reflects the condition of irregular working hours, then it will not be possible to avoid the provision of additional days of rest.

According to Art. 119 of the Labor Code of the Russian Federation, the duration of such leave is determined by a collective agreement or internal labor regulations and cannot be less than three calendar days.

Additional leave for irregular working hours may be added to the annual main paid leave (including extended leave), as well as to other annual additional paid leave.

For your information: rules for providing additional paid leave to employees with irregular working hours in federal government institutions determined by Decree of the Government of the Russian Federation dated December 11, 2002 No. 884.

Question:

Is it possible to provide employees with an additional day off for overtime?

Answer:

Indeed, quite often employees ask their employer for a day off, especially for drivers who often have to stay late after finishing work. However, overtime during irregular working hours is not equal to overtime during overtime work, in which the employee has the right to choose additional rest time instead of increased pay ( Art. 152 Labor Code of the Russian Federation). For irregular working hours, only vacation is entitled. Therefore, providing an additional day off remains at the discretion of the employer.

Question:

Is it necessary to pay compensation for unused vacation for irregular working hours when dismissing an employee who has not worked a full year?

Answer:

Article 127 of the Labor Code of the Russian Federation obliges the employee to pay compensation for all unused vacations. This means that it must be paid, but for the number of days corresponding to the time worked. For example, an employee is entitled to 4 days of additional leave after working for 8 months. Upon dismissal, he is entitled to compensation for 2.67 days (4 days / 12 months x 8 months).

Additionally, we note that the employee has the right to receive compensation for unused days of additional leave not only upon dismissal, but also during work. This right is granted to him by Part 1 of Art. 126 Labor Code of the Russian Federation: part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation.

Establishing irregular working hours

If the position for which the employee is employed requires work on irregular working hours, before concluding an employment contract, he must be familiarized with local regulations that establish a list of positions with irregular working hours, as well as the type and amount of compensation for work in this mode. After this, an employment contract is concluded, which must include a condition on working on irregular working hours (part 2 of article 57, part 1 of article 100 of the Labor Code of the Russian Federation).

The next step will be the issuance of an order for employment, in the column “Conditions of employment” in which you need to indicate the establishment of irregular working hours. But there is no need to enter information about the definition of such a regime - the entry for employment is made according to general rules.

Note: if the employment contract contains a condition on working on irregular working hours, and the position is not included in the corresponding list, attraction to disciplinary officer who refused to perform work outside the normal working hours will be illegal (see, for example, the Appeal ruling of the regional court dated 07/08/2014 in case No. 33-1982/2014).

If the need for irregular working hours arose after hiring (for example, when transferring to a position requiring work in such a mode), the employer must familiarize the employee with local regulations establishing a list of positions with irregular working hours, as well as the type and amount of compensation for working in this mode.

If such a regime is just being introduced, the employee must be notified of the change in working conditions. It’s good if the employee agrees to the introduction of a new work schedule. And if not? In this case, the employer should be guided by Art. 74 of the Labor Code of the Russian Federation, which allows the employer to change the terms of the employment contract for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.).

The employee is notified in writing at least two months before the introduction of a new work schedule, indicating the reasons why his position is included in the list of employees with irregular working hours. If you do not agree to work under new conditions, the employer is obliged to offer the employee another available job in writing (both a vacant position or work that meets the qualifications, and a vacant position). lower position or lower paid work) that the employee can perform taking into account his health condition.

In the absence of the specified work or refusal of the proposed employment contract, the employment contract is terminated under clause 7, part 1, art. 77 Labor Code of the Russian Federation.

In case of consent to new mode Everything is much simpler: an additional agreement to the employment contract is concluded. It indicates that from such and such a date the employee has a special working regime, and also reflects the duration of additional paid leave and other changing conditions, if necessary. Based on the signed agreement, an order is issued to determine the irregular working hours in any form.

Is it necessary to register for employment outside working hours?

Article 101 of the Labor Code of the Russian Federation states that engaging an employee to work beyond the norm is carried out by order of the employer, and does not specify in what form it should be done. Experts in the field labor law recommend documenting involvement in work outside of normal working hours. However, when considering disputes related to the performance of work during irregular working hours, the courts do not exclude the oral form.

For example, Supreme Court Republic - Alanya in the Determination dated 02.19.2014 No. 33-168/2014 in case No. 2-241/13 indicated that the decision to involve an employee in performing duties beyond the established normal working hours can be made and communicated to the employee by the direct (supervisor) V orally, since the Labor Code of the Russian Federation does not provide a certain shape(oral or written), in which the employer gives an order to involve the employee in work outside of working hours.

Processing accounting

If an employee is assigned an irregular working day, then work beyond the established working hours is not reflected in the working time sheet.

Some experts still believe that it is simply necessary to include processing in the report card, since according to Part 4 of Art. 91 of the Labor Code of the Russian Federation, each employer must keep accurate records of the working time worked by each employee. However, indicating overtime on the timesheet may lead to confusion between irregular working hours and overtime work and, accordingly, the latter will be paid.

We believe that it is necessary to record overtime, not in a time sheet, but in some other document, for example, an appropriate journal. Accounting for overtime may be useful in the event of any emergency: it will be possible to say for sure whether the employee was at work or not.

Work on weekends and holidays

Sometimes employers believe that employees with irregular working hours can be required to work on a weekend or holiday without any compensation. However, this is a mistake.

According to the general rule established by Art. 113 Labor Code of the Russian Federation, work on weekends and non-working days holidays prohibited, except for cases provided for by the Labor Code. Working irregular hours does not apply to such cases. Consequently, engaging such employees to work on a weekend or holiday is carried out according to general rules: consent is asked (in some cases it is not necessary), certain categories of employees are familiarized with the right to refuse said work, an order is issued and guarantees and compensation are provided - increased pay work or providing additional rest time.

The court came to a similar conclusion in the Appeal ruling dated June 16, 2016 No. 33-2113/2016.

Work at night

Let us remind you that according to Art. 96 of the Labor Code of the Russian Federation, the time from 22.00 to 06.00 is considered night time and work at this time will be a deviation from the norm. This means that recruitment to work at night must be properly formalized and compensated by increased wages in accordance with the requirements of Art. 154 Labor Code of the Russian Federation.

Summarize

Irregular working hours may be established for employees whose professions or positions are included in the list of professions and positions with irregular working hours. Such a list may be determined by order of the employer or other local regulatory act of the institution or a collective agreement.

The employer is not obliged to pay extra for work on irregular working hours, since this is not overtime work. In addition, the Labor Code stipulates that employees are guaranteed additional paid leave for working irregular working hours. Failure to provide such leave may result in the employer Negative consequences, up to administrative responsibility.

additional leave employment contract working conditions

Employees of many enterprises and organizations are from time to time forced to work outside the established working hours. In some cases this is considered overtime, and in others it is considered irregular working hours. The difference in concepts is significant; irregularity implies the obligatory nature of additional leave, in the form of several agreed days, and not payment for hours worked. Nuances of irregularity (for example, a shift schedule in which the total work time is calculated separately: details ) must be correctly recorded in the organization’s legal regulations and agreed upon in advance with the employee.

What is an irregular working day?

An irregular working day is a day in which an employee is called to work at any time outside the established schedule to perform his immediate duties. Despite this abstract formulation, the employer cannot exceed the authority given to him and call the employee to work whenever he pleases.

Involvement in extracurricular work should be carried out solely as a result of a production need. The involved employee must perform the duties specified in his contract. Irregular hours are stipulated in the employment contract of each individual employee. In the absence of such a clause in the contract, the work performed will be considered overtime and must be paid accordingly.

Irregular working hours of the Labor Code of the Russian Federation 2018 - how many hours?

Clarifications on establishing an irregular day can be found in Article 101 of the Labor Code of the Russian Federation. It specifies the basic provisions for the correct attraction of hired persons to work beyond the time established by law. Certain categories are prohibited from establishing such conditions.

In particular to such persons:

Workers who are under 18 years of age.
Disabled people of all groups.
Single mothers with children under 14 years old.

These categories may work overtime hours solely on a voluntary basis.
The number of hours or days of irregular work is not established by law. This is at the discretion of the employer. But the Labor Code of the Russian Federation still prescribes certain frameworks. According to the labor code, you cannot be hired on a permanent basis, daily or for several days in a row. For an employer, irregular work hours are very convenient, since an order to leave outside normal hours can be issued in any form - written or oral. To attract, you do not need to issue orders and separately coordinate with the employee.

For whom is it installed?

Irregular hours are usually established for certain positions, such as:

Senior managers.
Assistant managers with different statuses.
Head of services and departments.
Heads of departments with individual working hours.
Workers who are engaged in setting up equipment.
Technological specialists.
Employees of logistics and security departments.
Dispatchers.

The list of positions is compiled at each enterprise separately.

Regulations on irregular working hours

At enterprises that require positions with irregular working hours, a special regulation is drawn up that establishes the norms for days and hours of overtime work, and also clarifies the list of positions that fall under this category.

The position contains the following information:

Justification for attraction.
List of categories included in the special schedule.
Indication of days of additional leave for overtime by position.

The regulation is approved by order and brought to the attention of the persons specified in it.

How to specify irregular working hours in an employment contract - sample

The provision establishes only general established norms. To assign responsibilities to a specific employee, this condition should be indicated in the contract upon hiring. Or make an additional agreement to an existing agreement. In both cases, a separate paragraph prescribes the irregularity of days per year or hours per week. It is also necessary to indicate the days of additional leave received by the employee annually for fulfilling the terms of the contract.

Additional leave for irregular working hours according to the Labor Code of the Russian Federation

According to the Labor Code of the Russian Federation, the minimum duration of additional time for vacation should be at least 72 hours. This norm is established regardless of the number of extra-hour hours worked. The maximum permitted additional leave should not exceed 14 calendar days. Commercial organizations may not be guided by the maximum established limits and assign leave to their employees at their own discretion.

IN labor legislation Russia provides for such a work schedule as irregular working hours. The use of this mode of operation allows the employer to quickly solve the problems of the enterprise, but for the employee it is fraught with a number of inconveniences. In this regard, it is necessary to find answers to the main questions relating to the area under consideration. labor relations. How does the Labor Code of the Russian Federation interpret this concept? For whom is such a regime established, how many hours can you work without a break, how are overtime payments calculated and calculated?

What is an irregular working day according to the Labor Code of the Russian Federation?

An irregular working day (in accordance with Article 101 of the Labor Code of the Russian Federation) is a type of work routine when individual workers can be periodically, on a non-permanent basis, detained by the employer to perform certain work tasks even after the end of the standard working day. At the same time, such work will not be considered overtime (that is, there is no increased hourly pay for it, and a specific limit on the time allowed for overtime is not monitored).

Video: decision to establish an irregular day

Duration of work according to law

If an employee decides to work irregular hours, additional consent to increase the duration work shift will not be required, since these conditions are initially prescribed in the employment contract. At the same time, the employer must not abuse his powers, and such delays must occur strictly as necessary, that is, they must be justified.

Unfortunately, maximum amount hours worked is not regulated in any way by legislation. This loophole in the law allows bosses to give instructions to employees at any time. At the same time, employees who choose an irregular working time system have a longer vacation compared to other categories of personnel (at least 3 additional days are given).

For which employees is this schedule provided?

Under such conditions it is allowed to attract:

administrative, economic, technical personnel;
employees whose working hours cannot be accurately recorded and calculated (consultants, agents, etc.);
employees who independently regulate their work schedule;
employees whose working hours are divided into periods of indefinite duration.

Is overtime of a part-time worker allowed under the Labor Code?

Can a part-time worker have irregular working hours? It is possible, but it must be taken into account that the total working day when working part-time should not exceed more than 4 hours a day. In this case, it is possible to establish a floating schedule.

Video: who can have an irregular work week?

How to apply

Let's figure out what nuances need to be taken into account when designing such an operating mode.

List of positions

The management is obliged to list a list of certain positions for which irregular working hours are established. These changes must be reflected in the company's regulations.
Local documents should specify the procedure for establishing additional payments and the list of allowances due to the employee for work in conditions of increased complexity.

The procedure for notifying employees about changes in working conditions

The Labor Code of the Russian Federation does not provide a clear description of the exact form in which employees must be notified of the need to work on irregular working hours.

All employees affected by this working time regime must sign a document establishing the procedure for being recruited to work on irregular hours.
It is recommended to additionally issue an appropriate order to avoid conflict situations.
It is necessary to create a separate document where all overtime hours will be entered, since this information will not be displayed on a regular time sheet.

Sample employment contract

Compensation and payment

Employees who choose an irregular working time system have longer vacations compared to other categories of employees (at least 3 additional days are given). They also have the right to claim monetary compensation instead of additional vacation days. The amount of compensation is calculated in accordance with the number of compensated days multiplied by average earnings in 1 working day.

How should additional leave not provided be compensated?

Let’s assume that employee Ivan has an average salary of 1,200 rubles per working day. He is entitled to 3 additional days to the standard 28-day vacation. This means that he has the right to monetary compensation in the amount of 3,600 rubles instead of 3 days of additional paid leave.

Accounting for unregulated working hours

Not all personnel workers know how overtime hours should be calculated. What to put on the report card: an “eight” or the actual length of the working day? Since it is assumed that this mode is normal for the employee who has signed the corresponding contract, work beyond the established shift duration is not reflected in the time sheet.

If, in violation of the internal regulations of the company, the employee is not given additional leave, all overtime work should be considered overtime work. In this case, they must be reflected in the timesheet accordingly and compensated.

How to cancel a special operating procedure and return to the usual mode

To cancel an irregular working schedule, it is necessary to issue an appropriate order, indicating the new working hours and the reasons for which it is established. Below is a sample of it.

An irregular working day (in accordance with Article 101 of the Labor Code of the Russian Federation) is a type of work schedule when individual workers can be periodically detained by the employer to perform various work tasks even after the end of the regular working day. However, according to the law, the fact of processing itself should not be paid for. Employees who choose an irregular working time system have longer vacations compared to other categories of employees. They also have the right to claim monetary compensation instead of additional vacation days.

Irregular working hours
* Overtime
* Work at night
* Replaceable
*Part-time work
* Working hours for women and persons with family responsibilities
* Shift work
* Flexible schedule
* Time relax
*Work on weekends and
* Worker's time sheet
* Time off or absenteeism?

Definition: Irregular working hours

Labor Code RF provides working outside normal working hours:
irregular work;
overtime work.
Irregular working hours- a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions during periods outside the established working hours (Article 101 of the Labor Code of the Russian Federation).
A feature of this regime is the nature of the work, which, for reasons beyond the employee’s control, often does not allow the performance of certain labor functions during working hours (for example, the establishment of an irregular working day for the chief nurse of a children’s hospital will allow her to be involved in work after the end of the working day, if at this time children have been admitted for treatment and it is necessary to distribute them among departments; establishing this work schedule for a lawyer will allow him to be involved in court hearings, the beginning or end of which may be outside working hours).
An employee who has an irregular working day can be hired to work both before the start of the working day and after it ends (letter of Rostrud dated 06/07/2008 N 1316-6-1). At the same time, it is not necessary to obtain the employee’s consent to engage him in work in this mode. It must be remembered that under this regime, the employee is obliged to come to work at the beginning of the working day, like everyone else, and leave work no earlier than the end of the working day. In other words, he is subject to the rule established in the employer’s local act regarding the start and end times of the working day in the same way as other employees.
It should be noted that the excess of working hours above the norm established for the employee during irregular work must be episodic and the employer does not have the right to systematically involve the employee in performing his duties after the end of the working day.
For example . Safonov A.R. was hired for the position of chief engineer on irregular working hours: Daily Safonov A.R. overworks two hours compared to the norm established by the employment contract (eight hours daily). In this case, we should talk about overtime work with all the guarantees and compensations provided for by the Labor Code of the Russian Federation.
Systematic attraction employee to work outside the established duration of working hours may be considered by supervisory and control authorities and judicial authorities as overtime work, for which appropriate compensation is due.
The employer has the right to determine the list of positions that establish irregular working hours independently, recording it in a local regulatory act (Article 101 of the Labor Code of the Russian Federation). The act must be familiarized to employees against signature.
When determining the list of positions with irregular working hours It should be remembered that such a list employees cannot be included with a reduced working day, with a part-time working day, the duration of which is limited by agreement of the parties. Also, those persons who are prohibited by law from being involved in work beyond the established working hours cannot work in irregular working hours. This is due to the fact that an increase in working hours, even one-time, is a violation of the employee’s rights to provide state guarantees in the field of labor protection.
The establishment of irregular working hours for certain categories of employees, in addition to the local regulations of the employer, is also regulated by other norms, for example:
clause 14 of the Regulations on the peculiarities of working hours and rest time for car drivers (approved by Order of the Ministry of Transport of Russia dated August 20, 2004 N 15);
clause 37 of the Regulations on the specifics of working hours and rest time, working conditions for certain categories of workers railway transport, directly related to the movement of trains (approved by Order of the Ministry of Railways of Russia dated 03/05/2004 N 7).
An employment contract with an employee who is assigned an irregular working day must include a condition regarding such a work schedule (Part 2 of Article 57 of the Labor Code of the Russian Federation). In addition, before concluding an employment contract, the employee must be familiarized with local regulations establishing a list of positions with irregular working hours, as well as the type and amount of compensation.
If during the course of work the employee was transferred to a position that is included in the list providing for irregular working hours, then the additional agreement on the conditions of the transfer includes a clause establishing a special work schedule.
Working on irregular working hours requires additional guarantees and compensation.
Thus, in accordance with Article 116 of the Labor Code of the Russian Federation, an employee working on irregular working hours must be provided with additional annual paid leave. The specific duration of such leave must be established by the internal documents of the organization (collective agreement).
The minimum duration of additional paid leave is at least three calendar days. If such leave is not provided, overtime in excess of normal working hours, with the written consent of the employee, is compensated as overtime work.
The procedure and conditions for granting annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget are established by the Government of the Russian Federation, financed from the budget of a constituent entity of the Russian Federation - by the authorities of a constituent entity of the Russian Federation, financed from the local budget - by local government bodies.
Cannot installь irregular working hours in relation to all employees of a certain organization. This is permissible only in relation to those employees who are named by a collective agreement, agreement or internal labor regulations of the organization.
The internal labor regulations may establish a list of positions with irregular working hours, if the work occasionally requires involving an employee in performing labor responsibilities in excess of established working hours. As a rule, overtime is compensated by the provision of additional leave (Article 101.119 of the Labor Code of the Russian Federation).