Procedure for engaging in overtime work

“Colleagues, we need to finish the statistical report for the meeting. Who can stay to do extra work?” - asks the head of the department. “Let Masha stay, she’s young, unmarried, and she doesn’t have children,” Balzac’s aunts answer. Common situation? And now the question is: should Masha continue to work overtime?

And if so, how should I register and pay for these hours? And no less important: how to report to the tax authorities later? We will analyze the main points in the article. But if you have a special case, professional accountants can help you.

What work is considered overtime?

Art. 99 of the Labor Code (LC RF) gives the employer the right to detain an employee at work. That is, overtime work has two characteristics: it is initiated by the employer, and it is performed during the time that is considered non-working according to the contract. Moreover, this applies to the classic 5/2 schedule, and to shift work, rotational work and other work with summarized accounting of working hours.

A normal working week does not exceed 40 hours (Article 152 of the Labor Code of the Russian Federation). Anything processed above the limit is considered recycling. But what about those who already work less? There are categories of citizens for whom the work week is reduced to 24–36 hours. According to the law (Article 92 of the Labor Code of the Russian Federation), the following work less:

minors;
disabled people of groups I and II;
workers in hazardous industries of the 3rd and 4th degree;
employees engaged in hazardous work;
women in the Far North;
medical personnel;
teachers.

For them, the standard work week exceeds the norm. If a disabled person works 40 hours a week, then 5 of them will be considered overtime.

The concept of overtime work does not correlate with an irregular schedule. Employees may perform duties on weekends and public holidays. But such work is paid according to Art. 113 and Art. 153 Labor Code of the Russian Federation.

Some employees try to abuse their rights - they stay late or come early on their own for the sake of compensation. But according to the law, this is not overtime work; management is not obliged to pay for it.

Question: How do I pay for overtime work on a non-working holiday?

According to the general rule defined by Art. 153 of the Labor Code of the Russian Federation, work on a day off or a non-working holiday is paid at least double the amount. However, the Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions dated 08.08.1966 N 465/P-21 approved Explanation N 13/P-21, by virtue of clause 4 of which, when calculating overtime hours, work on holidays performed in excess of working hours should not be taken into account , since it has already been paid double.

2. Additional rest.

Instead of increased payment Art. 152 of the Labor Code of the Russian Federation allows an employee to receive additional rest time for overtime work. How long should this rest be? Certainly no less than the time worked overtime. That is, if an employee worked three hours above normal working hours, then the additional rest provided as compensation should be no less.

Note! Overtime work of FIFA employees, FIFA subsidiaries, FIFA counterparties, confederations, national football associations, the Russian Football Union, the Russia 2018 Organizing Committee, its subsidiaries, whose work activities are related to the implementation of events, is compensated by the provision of additional rest time, but not less than time worked overtime, taking into account the plans of the relevant organizations for the implementation of activities, unless otherwise provided by agreement of the parties to the employment contract. At the same time, the requirements of Art. 152 of the Labor Code of the Russian Federation (Article 11 of the Federal Law of June 7, 2013 N 108-FZ “On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2021 FIFA Confederations Cup and amendments to certain legislative acts of the Russian Federation”).

Who can and who cannot be involved in overtime work?

If you're concerned about the fate of Masha, who is forced to stay behind to finish the report, you need to find out more about her. For example, if she is pregnant or she is 17 years old, the manager cannot force her to work more. After all, according to Art. 99 of the Labor Code of the Russian Federation, children under 18 years of age and pregnant women should not be involved in overtime work.

But there are some assumptions. May work beyond normal:

representatives of creative professions (Article 258 of the Labor Code of the Russian Federation), a list of which can be found in Decree of the Government of the Russian Federation No. 252 of April 28, 2007;
athletes (Article 348.8 of the Labor Code of the Russian Federation);
working under an apprenticeship contract (Article 203 of the Labor Code of the Russian Federation);
employees with certain medical conditions for whom working hours are limited.

However, our heroine is an adult and is not yet pregnant. Will she still have to stay against her will? Only if she doesn't know her rights. Because first the employer must obtain the employee's consent.

Only with written consent... or not only?

A manager does not have the right to force subordinates to work overtime. First, he must obtain consent against signature and issue an order. When everything is documented, the employee can begin overtime work. Moreover, there must be a specific reason for this:

some technical problems arose due to which the work “stopped” - and failure to complete it should threaten either valuable property or the safety of people;
an emergency occurred that stopped the organization’s work, and its consequences must be urgently eliminated;
work is carried out in shifts and cannot be stopped, but the shift worker did not come out - then you need to find another worker as soon as possible.

That is, the situation that has developed at work must be quite serious. And preparing a report for a meeting is not included in this list. But in practice, by mutual agreement, the employee can stay and finish the job.

In Art. 259 and 264 of the Labor Code of the Russian Federation indicate special cases. Some workers may refuse to work overtime. If you want to attract them, familiarize your subordinates with their rights upon signature. This list includes:

women with children under 3 years of age;
disabled people;
parents of disabled children;
guardians of orphans;
single fathers and mothers with children under 5 years old;
workers caring for seriously ill relatives.

However, there are cases when consent is not required:

an industrial accident, man-made or natural disaster has occurred or may occur, and workers are required to prevent or eliminate the consequences of the incident;
the water, heat, gas or electricity supply system, sewerage system has failed, urgent repairs are required;
a large number of people are in danger due to a military conflict or natural disaster, mass evacuation is carried out, etc.

In these cases, everyone can work, with the exception of children under 18 years of age and pregnant women. But even if the employee performs his duties in conditions where written consent is not required, overtime work must be documented.

Is the employee's consent required?

The legislation provides for two cases of involving employees in working overtime: with the consent of the employee or without.
There is also a list of citizens who in no case can perform the work function assigned to them outside of school hours. Consent is not required in the following cases:

Accidents, disasters - to prevent them or eliminate their consequences;
Emergency situations or declaration of martial law;
To carry out mandatory public works to establish the functioning of important infrastructures (water supply, electricity supply, transport, communications, etc.).

Company management can also, with written consent, require an employee to work overtime if:

The shift employee did not show up on time to ensure continuity of the technological process;
It is necessary to repair and restore production equipment (temporary) to ensure continued operation;
In order to complete the work begun, which cannot be completed the next day as part of a normal day to ensure the safety of property, health and life of citizens.

The Labor Code of the Russian Federation also establishes a list of workers who cannot be involved in overtime. These include:

Employees expecting children;
Workers who are under 18 years of age;
Employees studying under a contract;
and other citizens provided for by federal laws.

In addition, there are categories of employees who can be employed overtime with written consent and compliance with the conditions of their admission (medical report, notification of the opportunity to refuse, etc.). These include employees with disabilities, employees with young children (under 3 years old), single parents (children under 5 years old), employees with disabled children or other family members who are supervised, etc.

Features of registration of overtime work

The consent that the employee must sign is the last link in the document flow chain. Other documents must be prepared first.

When an enterprise needs to involve employees in overtime work, you first need to write a memo. This should be done by the head of the department. The addressee is usually the director of the company. The note states:

the reason for the need for overtime work;
list of involved employees;
the period for which such a regime is established;
the time when the work will be carried out;
destination;
date and signature of the applicant.

We do not recommend using the vague wording “production necessity” as a reason. Identify the specific event that requires such measures. And remember that the head of the company has the right to call you to clarify the circumstances.

If the director puts the resolution “In the order” on the memo, the document is transferred to the head of the personnel department and the chief accountant so that he can calculate compensation for overtime work.

An order in the HR department is generated for each employee separately. Additionally, a notification (consent) is drawn up. There is no approved form for it, but there is a list of data that needs to be included in it:

Full name and position of the employee;
the reason for engaging in overtime work;
period and time of its implementation;
processing payment details;
signature of the head of the HR department, date.

If the employee has the right to refuse (we wrote about this above), room must be left for consent. Usually this item is on the reverse side.

Cost question: how much does overtime cost?

Since the employee actually works outside of working hours, he needs to be motivated. The law provides two ways to compensate for overtime: increased pay and additional time off. In both cases there are some nuances that need to be taken into account.

Procedure for payment of overtime work

In Art. 152 of the Labor Code of the Russian Federation describes in detail the procedure for paying for overtime. Regardless of the working time recording system (except for those who have irregular working hours). The law states that the first 2 hours are paid at one and a half times, and starting from the 3rd hour - at double.

The same article sets out the minimum amount that the employer must pay. Of course, no one forbids paying more. But this condition must be stipulated in local regulations. However, if the employer pays the “minimum wage”, this should also be noted in the documents.

Compensation is calculated depending on the established form of payment for a particular employee. It can be time-based or piecework. However, the law does not say exactly how the calculation should be carried out. Therefore, there are unspoken rules in accounting practice.

To calculate payment to an employee paid on a time basis (hourly, daily, monthly, salary), you need to determine how much one hour of work costs. And proceed from these indicators. That is, if an employee receives 200 rubles per hour, then for the first two hours of overtime he will receive not 400, but 700 rubles, etc.

With summarized recording of working time, the fact of overtime work can be established only by counting hours for the accounting period. It can be anything, but no more than a year. The calculation is carried out in exactly the same way, the first two hours are paid at one and a half times the rate, then double.

If an employee has overtime, for example, 20 hours a month, then for the first 2 hours he will receive one and a half rates, for the remaining 18 - double.

Additional day off - who benefits?

Upon written request from the employee, the employer may replace overtime pay with additional days off. The duration of rest must correspond to the amount of time worked. If an employee works 3 hours, then he must rest for at least 3 hours.

The important thing is that this day off is not paid. On the report card it is about, that is, time off without pay. And overtime work is not paid at an increased rate. This is very convenient for the employer, but not always for the employee. But there is such a possibility in the legislation.

Overtime is rarely more than 1-2 shifts, and most often it is just “extra” hours. The Labor Code of the Russian Federation does not indicate how to correctly record hours of additional rest. But experts advise simply marking the time actually worked on the timesheet or coming up with your own designation, enshrining it in a local act.

Employer liability and judicial practice

There are no special rules on employer liability for violating the law in the area of involving employees in overtime work. Nevertheless, the sphere of relations is quite responsible - there are certain clear limits that you just want to cross. Most often, violations are associated with:

incorrect identification of reasons requiring processing, which entails a violation of the procedure for processing work;
violation of the procedure for attracting employees (or its absence);
mixing the concepts of “unregulated work” and “overtime”;
violation of the rights of preferential categories;
exceeding the limits for involving employees in processing;
incorrect compensation for processing.

Responsibility for the detection of these violations arises under the general article of the Code of Administrative Offenses of the Russian Federation - 5.27 (“Violation of labor legislation”). At the request of an employee, the prosecutor’s office, or more often the labor inspectorate, can bring it to justice.

The employee, who worked as a cashier, demanded in court to recover additional payment from the employer for overtime work. She indicated that the employer did not keep track of working hours and did not pay for overtime work. The time sheet provided by the employer, in her opinion, did not correspond to reality. She kept her own time sheet, in which every day she recorded the data that was available to her to confirm the accuracy of the document: the serial number of the control counter at the end of the working day, the readings of the summing cash counter at the beginning and end of the working day, the revenue for the working day according to the counter. The court of first instance rejected the employee's claim, but the appellate court overturned this decision and made a new decision in the case, which upheld the claim. The lower court, refusing to satisfy the worker’s claims, proceeded from the fact that she performed overtime work on her own initiative. There was no initiative from the employer to involve the employee in overtime work. The Court of Appeal did not agree with this conclusion, citing the cashier’s certificates and reports. In addition, it was taken into account that the employer, by paying the employee an increased salary, thereby acknowledged the fact of overtime work.
Appeal ruling of the Volgograd Regional Court dated 06/01/2012 No. 33–4789/2012

Courts have different approaches to partial registration of overtime work (if only a time sheet is present). Employees’ claims in such a situation are not always satisfied—the correctness of the report card and proof of the employer’s intentions can play a decisive role.

The employee filed a lawsuit to recover additional payment from the employer for overtime work. As evidence, a time sheet compiled by him was presented. The courts of first and appellate instances supported the employee’s claims. In support of their positions, the courts referred to the employee’s job description, from which it followed that it was he who kept track of working time. The employer's reference to the lack of orders to involve the employee in overtime work was rejected. At the same time, the court took into account the employee’s explanations that overtime work was carried out by him according to oral orders of the head of the organization, which at the end of the month were documented in writing in the appropriate way, that is, with the same time sheet.
Appeal ruling of the Kirov Regional Court dated January 19, 2012 No. 33–164

In judicial practice, there are also results of consideration of disputes about payment (in particular, during overtime within the framework of summarized recording of working hours).

The employee appealed to the Supreme Court of the Russian Federation with a statement in which he asked to invalidate clause 5.5 of the Recommendations on the application of flexible working time regimes in enterprises and organizations of sectors of the national economy, approved by a joint resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated May 30, 1985 No. 162 and No. 12 –55 (hereinafter referred to as the Recommendations) in the part that provides for payment of overtime work at one and a half times the rate for the first 2 hours, falling on average for each working day of the accounting period, for the remaining hours - at double rate. Lower authorities denied him this. According to the Supreme Court of the Russian Federation, based on the meaning of Art. 152 of the Labor Code of the Russian Federation, work continued after the first 2 hours is paid at double rate. overtime during the working day (shift), and not the accounting period. The normal number of working hours for the accounting period, as follows from Part 2 of Art. 104 of the Labor Code of the Russian Federation, is determined depending on the duration of daily or weekly working hours established for this category of workers. Since, with a summarized accounting of working time, it is impossible to maintain the duration of working time during the day (shift) or week, then, accordingly, it is impossible to establish the duration of daily overtime and determine the number of hours, of which 2 hours are subject to payment at one and a half times, and the remaining hours - in double size. The law, having established the procedure for paying for overtime in excess of the working day (shift) established for a given category of workers, does not determine the mechanism for paying for overtime of the normal number of working hours for the accounting period when recording working hours in total. Therefore, by virtue of Part 1 of Art. 423 of the Labor Code of the Russian Federation Recommendations continue to apply.
Decision of the Supreme Court of the Russian Federation of October 15, 2012 No. AKPI12–1068

An absurd question: is it possible to obey the law by breaking the law?

The most controversial issue concerns paying taxes. The point is that when a company files a tax return, it can legally reduce its income tax.

In Art. 255 of the Tax Code of the Russian Federation (TC RF) states that additional payment for overtime work should be deducted from the profit of the enterprise, since these are labor costs. But the trick is that this can only be done when all the conditions for processing processing are met.

Their number is strictly regulated by Art. 99 Labor Code of the Russian Federation. Overtime should not exceed 120 hours per year. And an employee cannot be required to work overtime for more than 4 hours on two days in a row. But, of course, we all understand that these laws are not always observed. And it turns out that employers commit violations.

At the same time, no matter how absurd it may sound, there are documents that allow this. Moreover, they indicate that such processing can be included in the tax return.

We are talking about two letters from the Ministry of Finance: No. 03–03–06/1/278 dated 05.22.2007, No. 03–03–04/1/724, dated 07.11.2006. They note that exceeding the limit specified in Art. 120 is a violation. But an employee should not be deprived of overtime pay, even if the number of hours is higher than normal. Therefore, the employer pays money, and these are expenses that can be included in the declaration.

But in the letter of the Federal Tax Service for Moscow No. 16–15/ 0 2 5 7 8 7.1 dated March 23, 2009, it is written that only such payments that are required by law can be classified as expenses. Working overtime more than 120 hours per year is against the law. And even if the employer pays for it, he cannot include this amount in the declaration.

In practice, enterprise managers are guided by the letter from the Ministry of Finance and successfully reduce taxes. But for employees everything is crystal clear. Payment for overtime is part of the salary, therefore it is subject not only to personal income tax, but also to other taxes.

Memo for employers

Employees, of course, are rarely eager to work beyond the norm. But if it is paid as it should be, management usually does not have problems. So remember the most important thing:

ask employees and the union to agree in writing to work overtime;
pay attention to medical certificates - they indicate whether the employee can work overtime;
compensate for additional time in accordance with the law;
develop local regulations with detailed information on the involvement of overtime work, payment procedures, additional days off, etc.;
Keep a separate log and make sure that overtime does not exceed 120 hours per year.

All this is in the interests of the employer. After all, if you violate the rights of employees, staff turnover cannot be avoided. Tired workers will be less productive. In addition, the labor inspectorate may be interested in you.

For violation of the law, a fine is established, in accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. The company may be fined 30,000–50,000 rubles, and the responsible official – 1,000–5,000 rubles. For repeated violations, fines increase.

Sources:

Overtime work

Overtime pay

Sample memo regarding involvement in overtime work

MY RIGHTS: HOW TO PROTECT YOUR RIGHTS

Labor legislation on overtime work

The concepts of working time and normal working hours are established by Article 91 “The concept of working time.
Normal working hours" of the Labor Code of the Russian Federation (as amended on 02/05/2018). In accordance with this norm of the Labor Code:

work time is the time during which:
the employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties,
as well as other periods of time that, in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, relate to working time;

normal working hours:

cannot exceed 40 hours per week;

procedure for calculating working time norms for certain calendar periods (month, quarter, year) depending on the established duration of working hours per week:

determined by the federal executive body exercising the functions of developing state policy and legal regulation in the field of labor (Ministry of Labor and Social Protection of the Russian Federation - Ministry of Labor of Russia);

the employer is obliged to keep records of the working time actually worked by each employee.

Working outside working hours

In accordance with Article 97 “Work outside the established working hours” of the Labor Code of the Russian Federation (as amended on 02/05/2018), the employer has the right, sometimes, if necessary, to involve an employee in work outside the working hours established by labor legislation only in two cases :

for overtime work and

Article 99 “Overtime” of the Labor Code of the Russian Federation (as amended on 02/05/2018)

if the employee has an irregular working day.

Article 101 “Irregular working hours” of the Labor Code of the Russian Federation (as amended on 02/05/2018)

The concept of establishing an irregular working day for an employee, the procedure for payment and leave for an irregular working day were discussed in detail in the previous material, “The procedure for establishing an irregular working day.”

Article 99 of the Labor Code defines:

what work is considered overtime;
in what cases can employees be required to work overtime,
who cannot be attracted.

Article 152 “Payment for overtime work” of the Labor Code provides a diagram of how to calculate overtime hours.

What is overtime work according to 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.

Where is the working time established for an employee:

this is the duration of daily work (shift),
and in the case of summarized accounting of working hours - the normal number of working hours for the accounting period.

An employee is required to work overtime if a production norm is established for him. If the production standard is not established, the employee is required to work on irregular working hours.

Overtime is work performed by an employee in his free time from his main job:

it must be carried out at the request of the employer, formalized by an appropriate order and paid in accordance with the procedure established by labor legislation;
if the employee decided to take the initiative and stayed to work after hours, such work will not be considered overtime work.

Involving workers in overtime work

Let's consider what Article 99 of the Labor Code says about attracting workers to overtime work.

An employer's involvement of an employee in overtime work is permitted in the following cases:

if necessary, perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may result in damage or destruction of the employer’s property , including property of third parties located at the employer, if the employer is responsible for the safety of this property, state or municipal property or creates a threat to the life and health of people;
when carrying out temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;
to continue work if the replacement employee fails to appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift worker with another employee;

Working two shifts in a row is prohibited by Article 103 “Shift work” of the Labor Code of the Russian Federation.

written consent of the employee to be involved in overtime work.

An employer’s involvement of an employee in overtime work without his consent is permitted in the following cases:

when carrying out work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
when carrying out 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;
when carrying out 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 posing danger threat to the life or normal living conditions of the entire population or part of it.

In other cases, involvement in overtime work is allowed, I would like to draw your attention once again:

with the written consent of the employee;
taking into account the opinion of the elected body of the primary trade union organization;
the duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year;
The employer is obliged to ensure that the duration of overtime work of each employee is accurately recorded.

Who is prohibited from engaging in overtime work?

Article 99 of the Labor Code does not allow the following to be involved in overtime work:

pregnant women,
workers under the age of 18, other categories of workers in accordance with this Code and other federal laws,
employees who have entered into a student agreement with the employer.

Special procedure for attracting overtime work

For the following categories of employees, labor legislation establishes a special procedure for attracting overtime work:

disabled people;
women with children under 3 years of age;
mothers and fathers raising children under the age of five without a spouse;
workers with disabled children;
workers caring for sick members of their families in accordance with a medical report;

Article 259 “Guarantees for pregnant women and persons with family responsibilities when sent on business trips, involved in overtime work, night work, weekends and non-working holidays” of the Labor Code of the Russian Federation (as amended on 02/05/2018)

fathers raising children without a mother;

guardians (trustees) of minors.

Article 264 “Guarantees and benefits for persons raising children without a mother” of the Labor Code of the Russian Federation (as amended on 02/05/2018)

Involving disabled people and women with children under 3 years of age in overtime work is permitted:

only with their written consent and
provided that this is not prohibited for them due to health reasons in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation.

At the same time, disabled people, women with children under 3 years of age:

must be informed, upon signature, of their right to refuse overtime work.

Overtime pay

Payment for overtime work is regulated by Article 152 “Payment for overtime work” of the Labor Code.

In accordance with this article of the Labor Code, overtime work is paid:

for the first 2 hours of work at least 1.5 sizes,
for subsequent hours - no less than 2nd size;
Specific amounts of payment for overtime work may be determined by a collective agreement, local regulations or an employment contract.

At the request of the employee, overtime work, instead of increased pay, can be compensated by providing additional rest time, but not less than the time worked overtime.

Work performed beyond normal working hours:

on weekends and non-working holidays and
paid at an increased rate or compensated by providing another day of rest in accordance with Article 153 “Wages on weekends and non-working holidays” of the Labor Code,
is not taken into account when determining the duration of overtime work subject to increased payment.

This norm was introduced by Federal Law No. 125-FZ of June 18, 2017, effective June 18, 2021.

Article 152 of the Labor Code establishes the minimum amounts of overtime pay:

the employer in his local act can establish other amounts of her payment;
however, the following rule must be observed:
the amount of overtime pay cannot be lower than that established by the Labor Code;
since additional payment for overtime work is part of the employee’s salary, it is also subject to taxes and insurance contributions to extra-budgetary funds (PFR, MHIF and Social Insurance Fund).