Even with irregular working hours, work on weekends is paid

What is an irregular working day?

According to Art. 101 of the Labor Code of the Russian Federation is a special mode of work when, by order of the manager, an employee may periodically be involved in the performance of his duties after completion of working hours.

In this case, the following conditions must be met:

written or oral order from a manager
justification for the need for additional labor
the duties performed must be the same as those specified in the employment contract and performed as usual
episodic
the presence of a pre-compiled list of positions that can be assigned to an irregular schedule in accordance with the collective agreement

ATTENTION! Irregular working hours do not apply to the entire team, but only to those individuals whose presence at the workplace at odd hours is necessary for the work process. For example, they must report to the workplace at 4 am or stay there until 11 pm or complete monthly, quarterly and annual reports.

Registration of attraction to work beyond normal working hours

In irregular working hours, an employee is involved in work periodically by order of the employer. However, in Art. 101 of the Labor Code of the Russian Federation does not say how such an order should be drawn up. Based on this, we can say that the legislator also allows oral form. At the same time, we believe that oral instructions should only be used if the company has clearly established time tracking.

There are two positions regarding the fixation of overtime during irregular working hours.

Some experts believe that this is simply necessary, 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. For this purpose, a work time sheet of the unified form T-12 or T-13 is most often used. Using magazines is also not prohibited.

This is also important to know:
Reducing the working week according to the Labor Code: payment features

If an employee is late after work, then most likely the employee entering information into the time sheet will go home earlier, and accordingly there will be no one to record the number of overtime hours. In such cases, it is advisable to issue a written order. In addition, you can stipulate in the job description or employment contract, for example, that an employee stays at work for two hours twice a month to prepare a report. But there is no need to establish a condition that you need to stay late every day or every other day. Otherwise, when an employee applies to the State Labor Inspectorate, inspectors recognize such periodic involvement in work outside working hours as a violation of labor legislation.

Other experts believe that indicating overtime on the timesheet leads to the possibility of confusing irregular working hours with overtime work, and if the accountant considers the mark on the timesheet to be information about overtime, he will pay for it.

We adhere to the first point of view, since no one has canceled the time sheet. And recording the time spent at work will help the employer track the frequency of going beyond the working day. In addition, time tracking will be useful in the event of any emergency - it will be possible to say for sure whether the employee was at work or not.

Please note: We recommend that you enter the standard working hours for an employee with irregular working hours in the time sheet. And records of processing can be kept in a separate journal.

How many extra hours are allowed?

According to Art. 91 of the Labor Code, the normal length of the working week is 40 hours, usually a five-day week with an 8-hour working day.

But in some cases, if necessary, the employer can change the work schedule and involve an employee:

to overtime work
irregular day

And if the Labor Code specifies clear restrictions on the duration of overtime work, then there are no such specific instructions for irregular days.

There are only requirements that involvement in NSD:

should not be a constant, but only an episodic phenomenon
must be caused by extreme necessity
does not apply to weekends and holidays
does not apply to persons working part-time

ATTENTION! Obtaining the consent of a subordinate to perform work duties after completion of working hours is not required.

Attracting to work on holidays and weekends, to work at night

Let us repeat that many employers interpret Art. 101 of the Labor Code of the Russian Federation in their favor, considering that those who work irregular working hours must work “without days off or holidays.” But this position is wrong. Workers in this regime are subject to all the norms of the Labor Code and can be recruited to work on a non-working holiday or day off only in compliance with the rules established by the code.

This is also important to know:
The procedure for engaging in overtime work: what applies to overtime work, when is it allowed

For example, to attract employees with irregular working hours to work on days off, you will have to strictly follow Art. 113 of the Labor Code of the Russian Federation and formalize:

written agreement;
taking into account the opinion of the elected body of the primary trade union organization;
notification of the right to refuse work on a day off (for disabled people, women with children under three years of age) and familiarize employees with it against signature;
order to hire someone to work on a day off.

In addition, before issuing an order, you will have to make sure that employees have no medical contraindications for such work.

Finally, work on a day off must be paid according to the rules of Art. 153 Labor Code of the Russian Federation.

Please note: Work on a weekend or a non-working holiday is paid at least double the amount:

for piece workers - at no less than double piece rates;
employees whose work is paid at daily and hourly tariff rates - in the amount of at least double the daily or hourly tariff rate;
for employees receiving a salary (official salary) - in the amount of at least a single daily or hourly rate (part of the salary (official salary) for a day or hour of work) in excess of the salary (official salary), if the work was performed within the monthly working time norm, and in the amount of no less than double the daily or hourly rate (part of the salary (official salary) for a day or hour of work) in excess of the salary (official salary), if the work was performed in excess of the monthly working hours.

Like working on weekends, working at night is a deviation from the norm for an employee with irregular working hours. Let us remind you that according to Art. 96 of the Labor Code of the Russian Federation, the time from 22.00 to 6.00 is considered night time. Accordingly, employment at this time must be properly formalized and paid at an increased rate - at least 20% is added to the salary or tariff rate (Article 154 of the Labor Code of the Russian Federation).

Part-time and part-time work

According to Article 101 of the Labor Code of the Russian Federation, an employee working part-time can be assigned an irregular day if he is assigned a part-time working week, but with a full working day (shift).

If the employee is assigned a part-time working day, then it is impossible to establish an irregular working day for him. In this case, one of the labor modes completely loses its meaning.

Also, the law does not prohibit the establishment of irregular hours for part-time workers. But there are some peculiarities here:

If a part-time worker is given a working day of no more than 4 hours, then such a working day is considered incomplete. Therefore, it is impossible to establish an irregular working day;
If a part-time worker at his main place of work is free from work duties on some days, then he can work a full shift with a part-time workweek. In this case, he will be able to establish an irregular working day (according to Article 101 of the Labor Code of the Russian Federation) and, accordingly, compensation in the form of annual paid leave of at least three calendar days.

List of positions

The list of positions for which NSD can be applied is listed in the internal labor regulations in accordance with Art. 189 Labor Code of the Russian Federation.

It is compiled arbitrarily at the level of a specific enterprise. There is no single list of such positions in the legislation.

In practice, the list of positions with irregular hours most often includes:

management team (manager, chief accountant, etc.)
maintenance specialists
housekeeping staff
employees whose working hours cannot be taken into account, for example, it is easier for a real estate insurer to catch clients after the end of normal working hours
representatives of creative professions whose period of work is not specified, etc.

How is the NSD regime formalized in an employment contract?

Following Art. 57, 101 of the Labor Code of the Russian Federation, when employing an applicant, the possibility of involving him in his duties at odd hours is stipulated and documented, for this:

In the employment contract, in the section “Workplace, working hours and rest time,” a special entry is made stating that an irregular working day is established for the employee. Recruitment to work under the NSD regime is carried out in the manner prescribed by a specific section of the internal labor regulations.
The “Guarantees and Compensations” section indicates how compensation for irregular working hours occurs, for example, by providing annual additional paid leave of 5 calendar days.
In the order for hiring a new employee, in the line “conditions of employment, nature of work” the entry is made: “The main work is on irregular working hours.”

If the requirement for NSD was not specified initially, and this becomes necessary later, you will have to draw up an additional agreement to the contract indicating all changing conditions, incl. NDR regime.

Flexible hours, long hours, overtime - what's the difference?

As mentioned above, many mistakenly mistake a flexible schedule for an irregular working day, when an employee works the working hours established by the employment contract without a fixed start and finish of the working day, which are determined by mutual agreement (Article 102 of the Labor Code of the Russian Federation). However, these are completely different things. Unlike a flexible work schedule, which is also fixed in the employment contract or an additional agreement to it, irregular working hours have clear boundaries. If the TD states that the employee must start work at 10:00, then he cannot come to work at 12:00, since he has a position with an irregular work day. He must arrive at 10:00, otherwise he risks receiving a disciplinary sanction: a reprimand or reprimand from his superiors (Article 192 of the Labor Code of the Russian Federation). And for being late by 4 hours or more you can even get fired.

Thus, irregular working hours, unlike a flexible schedule, have clear boundaries, but they can be “extended” at the verbal request of the employer. Such requests may be sporadic. The employee's consent to work beyond normal working hours is not required, nor is additional payment required.

The difference between irregular working hours and overtime lies in the payment and the need to obtain the employee’s consent for overtime. Let's take a closer look at the difference. Irregular working hours:

does not require a person’s consent to engage him in work outside of working hours;
not formalized by order (an oral order from superiors is sufficient);
payment for irregular working hours is not due;
the number of occasional exits “after work” is not regulated;
employees are entitled to leave for irregular working hours - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three additional days of leave. Naturally, paid. The employment or collective agreement may stipulate more. The days are required to be provided even if the employer did not exercise his right to occasionally involve the employee in work duties outside of normal hours during the year.

This is also important to know:
Investigation of industrial accidents: which accidents are subject to investigation and recording

Overtime in 2021:

requires the mandatory consent of the employee, excluding emergency cases;
executed by a written order from the employer;
the duration of overtime work cannot exceed 4 hours for 2 consecutive days and 120 hours per year;
paid at least one and a half times the amount for the first 2 hours and at least
twice in the following hours;
Additional leave is not allowed.

As can be seen from the comparison, according to vacation, additional days are awarded for irregular working hours, but not for overtime work. The opposite situation occurs with additional payment, which is made only for overtime work.

Amounts of compensation, additional payment, additional leave

For overtime hours, additional paid leave of at least 3 working days is provided. The right to receive it is given on the basis of an entry in the employment contract. Vacation can be added to the main one; this is noted in the employee’s personal card and personal account.

ATTENTION! Different positions may have different vacation durations.

If the employee wishes and the administration agrees, vacation can be replaced with monetary compensation.

IMPORTANT! You cannot count on additional leave or monetary compensation if there is no entry about NSD in the employment contract. In this case, processing will be considered voluntary and will not be recognized by the NDR regime.