Vacation without saving wages

1. In addition to paid leave, employees may be granted unpaid leave. They are all subdivided into two groups.

One group of vacations - vacations that can be provided by the employer if the employee has good reason... The length of these vacations may vary. It is determined in each specific case by agreement of the parties, based on the interests of the employee and the production needs of the employer.

The second group of vacations is vacations that the employer is obliged to provide. If they are not provided, the employee has the right to apply to the labor dispute resolution authorities with a statement about the violation of his right to unpaid leave.

Compulsory unpaid leave is granted in cases specified in the Labor Code, other federal laws or in collective agreement.

A number of unpaid leave that is compulsory leave is granted under federal laws. So, according to Art. 8 of the Law of the Russian Federation of January 15, 1993 N 4301-I "On the status of Heroes of the Soviet Union, Heroes Russian Federation and full holders of the Order of Glory "* (16) and Art. 6 of the Federal Law of January 9, 1997 N 5-FZ" On the provision of social guarantees Heroes of Socialist Labor and full holders of the Order of Labor Glory "* (17) workers - Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory, Heroes of Socialist Labor and full holders of the Order of Labor Glory are granted unpaid leave for up to three weeks a year ...

3. All unpaid leave, regardless of their duration, must be formalized by an order (decree) of the employer. Any of these holidays can be interrupted by the employee. He must notify the employer about his return to work before the end of the vacation.

Each person at any time may have a situation when it is urgently necessary to take a few days of rest.

If the paid vacation has already been spent or has not yet been earned, the only way out is to leave at your own expense without pay for family reasons and other valid reasons.

Who can apply for such a period, whether the employer is obliged to provide it and whether the length of service is maintained, we will tell below.

Who can take vacation at their own expense under the Labor Code of the Russian Federation?

To answer this question, you need to refer to the rule of Art. 128 of the Labor Code of the Russian Federation. Any employee has the right to submit a written application requesting release from his job duties. But not everyone can get consent from the employer.

The manager is obliged to consider each submitted application and give an answer based on the operational need, taking into account the reason that prompted the employee to make such a request.

The law allows you to apply for self-pay leave without pay.

Reasons and grounds for vacation at your own expense

If you do not have any of the benefits provided by law, then you can get such leave only after the consent of the employer. In some cases, the provision of a rest period is not a right, but an obligation of the company.

This applies to certain categories of employees:

• WWII veterans and combatants equated to them (Afghans, etc.);
• retirees continuing labor activity after receiving benefits;
• labor veterans, if these conditions are established by the norms regional legislation;
• disabled people of all groups;
• heroes of labor, heroes of the USSR and the Russian Federation;
• teachers with more than ten years of experience in the industry;
• widows and parents of deceased employees law enforcement or military personnel;
• liquidators of the Chernobyl accident;
• municipal and government employees.

Such leave can be obtained in the event of the death of a close relative, the birth of a child, registration of marriage, admission to a university, covering the difference between the annual leave for the main and additional work part-time, joint recreation with a military spouse, etc.

If you are disabled or retired, you do not need to get approval from your boss to take a vacation at your own expense.

Vacation application at own expense

It is necessary to apply for exemption from work only in writing by submitting an application. A sample can be requested from the HR department. They will also help to draw up this document.

If the company is small and does not have such a service, you need to draw up an application yourself. It states:

• FULL NAME. the head of the company;
• your full name and position;
• the reason for granting leave, preferably with reference to the norms of the Labor Code of the Russian Federation or a collective agreement, which stipulate the employer's obligation to provide such a period of time;
• signature and date of preparation of the document;

Note!

If there are documents confirming the benefits, they must be provided to the employer along with the submitted application.

Maximum vacation time at own expense

Labor law does not set a specific maximum term. Therefore, it can last from several days to several weeks or even months. The main thing is that an agreement is reached between the employer and the employee.

For invalids

A disabled employee has the right to receive 60 days of unpaid leave in a calendar year in order to rest and improve his health. If desired, he can take such a period in parts several times a year to visit doctors or for examinations. Unused days will not be carried over to the next year.

For pregnant

It is impossible to fire a pregnant woman on the initiative of the employer. Therefore, before the decree or immediately after it, she has the right to issue an annual paid leave of 28 calendar days.

A pregnant woman does not have any benefits for receiving an unpaid rest period for family reasons and other valid reasons. She can only get it on general grounds as agreed with the employer.

For other employees

The law provides for exceptions for state and municipal employees. There is a maximum period for being released from work without pay. This period should not exceed 12 months.

If you have the opportunity to take a vacation in connection with a statutory benefit, the employer has no right to reduce its duration, despite the need for work.

• up to 35 days - for WWII veterans, combatants and Afghans;

• up to 14 days - to working pensioners, as well as to widows and parents of a deceased soldier and parents of disabled children;
• up to 15 days - for passing exams when entering a university or defending a diploma;
• up to five days - at the birth of a child and registration of marriage;
• up to 12 months - for teachers with at least 10 years of experience and for state. employees according to Art. 46 of Law No. 79-FZ for scientific activities.

Note!

If you have several reasons for obtaining leave at your own expense, then its duration is not summed up.

What will happen in case of illness while on vacation at my own expense?

If you get sick while on unpaid leave, then these days sick leave will not be paid. The days of illness, in contrast to the main paid rest period, in this case will not be postponed.

If, during the illness, the leave without pay has ended, the sick leave will be paid in general order from the moment you were obliged to start work.

The rest period at its own expense is not extended if it falls on holidays and non-working dates.

How to register?

Leave at own expense can only be granted after a written application has been submitted, which indicates the reasons for the employer to make an informed decision, as well as the date of the start and end of the holiday.

The manager expresses his consent on the statement itself in the form of the inscription "I do not mind." After that, an order is issued in the personnel department. For this, the company-approved unified form T-6 (T-6a) is used. The order indicates the number of calendar days of vacation, the dates of its start and end.

Note!

Always wait for an order to be issued. Even if you have benefits and the employer is obliged to grant an exemption, he can fix absenteeism and impose disciplinary action.

You cannot go on vacation without reading the order against signature. This document must be signed by the head of the company or authorized by him executive.

In case of conclusion employment contract with remote employees, you can get an unpaid vacation after the exchange electronic documents and certification by their qualified signatures.

Information on the provision of rest days is necessarily reflected in the time sheet and in the employee's personal card. This is necessary for the correct calculation of salaries when calculating annual paid leave.

Note!

You cannot force an employee to leave work, even if there is a downtime. For such a violation, the employer is provided with administrative penalty.

Guarantees for an employee on leave without pay

The main guarantees include:

• a ban on transfer to another job or dismissal at the initiative of the employer. An exception may be the termination of the activity of an individual entrepreneur or the liquidation of the company;
• receiving maternity benefits in full, because the employee is the insured person. The maternity allowance is paid in full;
• receiving standard tax deductions despite not having income for a certain period. As long as the employee's income has not exceeded the statutory limit, he receives tax deductions, if necessary, by submitting the appropriate documents for this.

The total work experience does not include the time spent on vacation at your own expense, since contributions to Pension Fund are not produced.

What to do in case of refusal?

If your employer has refused to grant you unpaid leave due to the lack of benefits and legal grounds for obtaining it, it is pointless to dispute these actions.

If you wrote an application based on the benefits provided by the Labor Code of the Russian Federation, and the head did not agree, you can take the following steps:

1. Take a copy of the application

   If you did not leave the second copy for yourself, then you need to request a duplicate from the secretary or an employee of the personnel department. A copy must be issued within three days.

2. Write a reapplication

   If there are urgent circumstances (beginning of the session, funeral, wedding), it is better to write a statement again, attaching supporting documents to it, or indicate that they will be attached after going to work.

3. Leave the workplace

   After that, you need to be ready to draw up absenteeism acts. The supervisor can issue an order to impose disciplinary action in the form of a reprimand or dismissal for absenteeism.

4. Write an explanatory

   When reading the order, you should write an explanatory note and send it to the head of the company. It must indicate the reasons for the absence from work and attach the relevant documents for proof.

5. Appeal against the decision of the superiors

   If the manager signs a dismissal order for absenteeism, a complaint should be filed with the department State Inspection for labor, as well as apply to the prosecutor's office or court.

Note!

It is better to file complaints with all authorities at once.

It makes no sense to apply to the labor dispute commission, if one was created at the enterprise. Dismissal can be directly appealed to district court at the location of the company.

It is important not to miss the deadline limitation period if you were unlawfully dismissed (it is equal to 1 month after reading the order).

After drawing up statement of claim which will be prepared correctly experienced lawyers Pravoved.ru, it should be sent to court. By proving that the employer violated the law, you will be able not only to recover from work after an illegal dismissal, but also to recover from the enterprise compensation for the time of the forced absence, moral damage and expenses for the lawyer involved in the case.

Any employee may have circumstances in which he urgently needs days off from work. For this, Art. 128 of the Labor Code of the Russian Federation provides for the provision of leave without pay. Let us recall in what cases the employer is obliged to provide such a vacation to an employee, and in what cases he is entitled and how to properly arrange a vacation at his own expense. In addition, we will analyze the questions to which the Labor Code does not contain answers.

Labor legislation stipulates that for family reasons and other valid reasons, an employee may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer. The granting of such leave is possible only upon a written application from the employee himself.

Based on Art. 128 of the Labor Code of the Russian Federation unpaid leave are divided into two groups:

1) those that are given at the discretion of the employer (that is, the employer has the right to refuse to grant leave);

2) those that the employer is obliged to provide at the request of the employee.

Recall that during the vacation without pay, the employee retains his place of work (position).

At the discretion of the employer

The first group includes vacations provided for family and other valid reasons.

The Constitutional Court in its Ruling of 19.02.2009 N 75-O-O indicated that in the absence of a list of valid reasons in the Labor Code of the Russian Federation, Part 1 of Art. 128 of the Labor Code of the Russian Federation, which establishes a mechanism for releasing an employee from the performance of labor duties in the presence of valid reasons, is aimed at ensuring a balance of interests between the employee and the employer. That is, the duration of unpaid leave is determined taking into account the nature of the reasons that caused the need for unplanned leave, and corporate interests. It should be noted that Art. 128 of the Labor Code of the Russian Federation does not contain the employer's right to determine the period of time and duration of this vacation, but only speaks of the obligation to provide it at the request of the employee.

The employer decides whether the reason is valid. If the employer considers the reasons specified in the application for granting unpaid leave to be disrespectful and refuses to grant it, then the employee's unauthorized absence from work may be regarded as a violation of labor discipline. Accordingly, the employer can take disciplinary action up to and including termination of employment. This is also stated in the Letter of Rostrud dated 31.10.2008 N 5916-TZ.

In particular, in paragraph 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2, it is indicated that the dismissal under paragraphs. "a" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation for absenteeism can be made for unauthorized leave. Moreover, according to Part 6 of Art. 81, the dismissal of an employee at the initiative of the employer during unpaid leave is not allowed (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur).

However, the employer's decision to recognize the specific reason for the employee's absence from work as disrespectful can be verified in court.

In addition, please note that the employee must make sure that an agreement has been reached with the employer on the granting of vacation and its duration. Inappropriate leave can also lead to dismissal. This is stated in the Appellate ruling of Krasnoyarsk regional court from 22.01.2014 N 33-514 / 2014, in which the court recognized the dismissal of the employee as justified, and in the Appellate ruling of the Tambov regional court dated July 29, 2013 N 33-2228.

Obligation of the employer

Providing leave for selected categories employees is not a right, but an obligation of the employer. This is indicated by Part 2 of Art. 128 of the Labor Code of the Russian Federation. So, the employer is obliged, on the basis of the employee's written application, to provide unpaid leave:

- to the participants of the Second World War - up to 35 calendar days a year;

- working old-age pensioners (by age) - up to 14 calendar days a year;

- parents and wives (husbands) of military personnel, employees of internal affairs bodies, federal fire service, bodies for control over the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penal system, who died or died as a result of injury, concussion or injury received in the performance of duties military service(service), or due to an illness associated with military service (service) - up to 14 calendar days a year;

- working disabled people - up to 60 calendar days a year;

- employees in cases of childbirth, marriage registration, death of close relatives - up to five calendar days;

- in other cases provided for by the Labor Code of the Russian Federation, other federal laws or a collective agreement.

Note! The time of use and the duration of such leave are independent of the employer's discretion and are determined by the employee within the limits established by law.

Note that if an employee belonging to one of the listed categories, wrote an application for granting him unpaid leave, but the employer did not agree on it, then dismissal for absenteeism in the event of unauthorized absence from work is virtually impossible. This is also indicated by judicial practice, for example, the Appellate ruling of the Volgograd Regional Court dated January 16, 2013 N 33-302 / 2013, where the court satisfied the pensioner's demands to reinstate him at work and recognized the order of dismissal as illegal.

As you can see, the employer, when receiving an application from employees of the above categories with a request for the provision of unpaid leave, should not assess the validity of the reasons why they need an administrative one. Also, regardless of the employer's desire, leave must be granted, in particular:

- persons who combine work with obtaining higher education for bachelor's programs, specialty programs or master's programs, and employees entering training under these educational programs (part 2 of article 173 of the Labor Code of the Russian Federation);

- persons who combine work with obtaining an average vocational education, and employees entering training in educational programs of secondary vocational education (part 2 of article 174 of the Labor Code of the Russian Federation);

- to persons working part-time, if the duration of the annual paid leave is less at part-time work than the duration of the leave at the main place of work (Article 286 of the Labor Code of the Russian Federation);

- to persons working in the regions of the Far North and equivalent areas (from the meaning of part 3 of article 322 of the Labor Code of the Russian Federation, it follows that providing an employee with the time necessary to travel to the place of using the leave and back is formalized as a leave without pay);

- to proxies of political parties, candidates for the period of exercising their powers (part 4 of article 55 of the Federal Law of 22.02.2014 N 20-FZ "On the election of deputies The State Duma Federal Assembly of the Russian Federation ");

- voluntary firefighter of territorial divisions of voluntary fire department at the place of work (part 7 of article 18 of the Federal law of 06.05.2011 N 100-FZ "On voluntary fire protection").

Other federal laws that establish the employer's obligation to provide an employee with unpaid leave include:

- Federal Law of 21.01.1995 N 5-FZ "On Veterans";

- Law of the Russian Federation of 15.01.1993 N 4301-1 "On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory";

- Federal Law of 09.01.1997 N 5-FZ "On the provision of social guarantees to Heroes of Socialist Labor and full holders of the Order of Labor Glory";

- Federal Law of 27.05.1998 N 76-FZ "On the status of a serviceman."

It should also be remembered that in some cases the law provides for the possibility of granting long unpaid leave to certain categories of workers. For example, unpaid leave for a period not exceeding one year, unless otherwise provided by federal laws, may be granted:

- a civil civil servant (clause 15 of article 46 of the Federal Law of 27.07.2004 N 79-FZ "On state civil service Russian Federation");

- to a municipal employee (clause 6 of article 21 of the Federal Law of 02.03.2007 N 25-FZ "On municipal service In Russian federation");

— teacher(Clause 4, Part 5, Article 47 of the Federal Law of December 29, 2012 N 273-FZ "On Education in the Russian Federation").

By collective agreement

The provisions of Art. 263 of the Labor Code of the Russian Federation provides that a collective agreement may establish annual additional vacations without pay for up to 14 calendar days to the following persons:

- employees with two or more children under the age of 14;

- employees with a disabled child under the age of 18;

- a single mother raising a child under the age of 14;

- a father raising a child under the age of 14 without a mother.

The transfer of this leave to the next working year is not allowed.

In addition, the employer should also take into account the provisions of industry agreements when setting the collective bargaining agreement for unpaid leave that employees can count on.

Often, the collective agreement also includes other cases of granting leave at their own expense, for example, to a parent (guardian, trustee) of primary school students on the first day of the school year.

Independent leave and its impact on seniority

The calculation of the length of service, which gives the right to annual paid leave, is carried out in accordance with Art. 121 of the Labor Code of the Russian Federation.

The time of unpaid leave for more than 14 calendar days is not included in the length of service, which gives the right to annual basic paid leave. In this case, the end date of the working year is shifted by the number of days excluded from the specified length of service (Letter of Rostrud dated 06.14.2012 N 854-6-1).

For example, during the working year - from 04/01/2013 to 03/31/2014 - the employee was provided with leaves without pay total duration 17 calendar days. Accordingly, 14 calendar days are included in the length of service, which gives the right to annual paid leave, and the remaining 3 calendar days are not taken into account when calculating the length of service. Therefore, the end date of the working year will not be 03/31/2014, but 04/03/2014. The new working year will begin on 04.04.2014.

For your information. Days of unpaid leave are excluded from the calculation period when calculating the average earnings, regardless of its duration (subparagraph "e" of clause 5 of the Regulation on the specifics of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of 12.24.2007 N 922).

The time spent by an employee on unpaid leave cannot be included in his insurance record taken into account when assigning a pension. This follows from paragraph 1 of Art. 10 of the Federal Law of December 17, 2001 N 173-FZ "On Labor Pensions in the Russian Federation", since the insurance experience includes periods of work and (or) other activities that were performed on the territory of the Russian Federation by citizens of the Russian Federation insured in accordance with the Federal Law of December 15 .2001 N 167-FZ "On compulsory pension insurance in the Russian Federation", provided that insurance contributions were paid to the PFR for these periods.

Note! The object of taxation of contributions for compulsory pension insurance for the employer is the payments accrued to him in favor of individuals within the framework of labor relations (Article 10 of Law No. 167-FZ).

Since the employer does not pay wages to an employee who is on vacation at his own expense, insurance contributions to the Pension Fund of the Russian Federation for this period are not charged. Consequently, the period of unpaid leave is not included in the employee's insurance record. In addition, as indicated in the Decision of the Moscow City Court of November 28, 2013 N 4g / 4-11742, only periods of annual main and additional vacations are counted in the special length of service, administrative leave is credited to the special length of service, which gives the right to early pension provision are not subject.

Common situations

We recalled in which cases the employer is obliged to provide leave at his own expense, and in which he is entitled. Now let us consider situations encountered in practice that are not regulated by labor legislation.

Leave at own expense on the initiative of the employer. Sometimes employers ask their employees to write an application for unpaid leave in order not to pay them 2/3 of the average earnings due to downtime (Article 157 of the Labor Code of the Russian Federation). However, such a request is illegal. In this case, employees can apply to the labor inspectorate or court to protect their interests.

Let us remind you that according to Art. 72.2 of the Labor Code of the Russian Federation, downtime means a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.

Based on Art. 128 of the Labor Code of the Russian Federation, it is allowed to provide an employee with unpaid leave only if the following conditions are met:

- leave must be initiated by the employee himself and granted on the basis of his personal written application;

- the granting of such leave is conditioned by the occurrence of relevant family circumstances or other valid reasons that take place in the life of the employee.

Similar conclusions are presented, for example, in the Appellate ruling of the Armed Forces of the Altai Republic dated 05.15.2013 N 33-296.

Is it possible to provide a vacation "at own expense" in connection with the marriage, if the employee wrote an application for such a vacation a month after the marriage? To answer this question, we turn to jurisprudence... In particular, in the Appellate ruling of the Kemerovo Regional Court dated 17.08.2012 N 33-7790, the following situation is considered: the employee, while on annual leave, married. On the first working day after the vacation, he turned to the employer with an application for granting him extra days according to the collective agreement. However, the employee was denied leave without pay due to the fact that the marriage took place a month ago. The employee did not go to work on the days indicated in the application and was fired for absenteeism. The court recognized dismissal for absenteeism in this situation unlawful: providing an employee with additional leave in case of marriage registration (part 2 of article 128 of the Labor Code of the Russian Federation) is the employer's obligation, which is not dependent on any reasons, including a shortage of employees. The only necessary and sufficient condition for the granting of such leave is the submission of an appropriate application by the employee. Thus, the absence of an employee at the workplace on these days is not absenteeism, since it is associated with the use of days of rest guaranteed by law.

Can an employee get out of vacation early at his own expense? Recall that the initiator of such a vacation is the employee. If he decides to go to work before the end of the unpaid leave, he must write an application addressed to the manager. Upon successful agreement, an order is issued in which the following must be indicated:

- "Get to work." (date);

- "Basis: employee statement".

The employee must be familiarized with the order against signature.

If the employer does not agree, he puts his resolution of disagreement on the employee's application.

Can an employee sent on a business trip write an application for granting him leave without pay? If the employee does not belong to the category of citizens to whom the employer is obliged to provide such leave, then its provision is a right, and not an obligation of the employer. That is, the employer can refuse to grant leave at his own expense to the traveler.

If the employee asks for a vacation at his own expense on the basis of Part 2 of Art. 128 of the Labor Code of the Russian Federation, the employer has no right to refuse him.

Vacation registration at your own expense

Regardless of whether the granting of unpaid leave is mandatory or it is provided for family and other valid reasons, the employee's personal statement will always be the basis. It is recommended to indicate the specific reasons that became the basis for going on vacation at your own expense, or make a reference to the conditions that oblige the employer to provide such vacation.

On the basis of the application and in the case of approval of the vacation or in a situation where the granting of vacation to the employee at his request is mandatory, an order (order) is issued on the granting of vacation in the T-6 form (if the institution uses unified forms approved by the Resolution of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1), with which the employee is introduced under a personal signature.

* * *

In conclusion, we recall once again: if unpaid leave is granted on the basis of Part 1 of Art. 128 of the Labor Code of the Russian Federation, the employer himself assesses the validity of the reasons for its provision.

If the employer is obliged to provide leave at his own expense to the employee on the basis of part 2 of the specified norm, then its failure to provide it may result in the employer trial or the application of administrative measures.

So, in the Ruling of the St.Petersburg City Court of 03.12.2012 N 33-16784 / 2012, it is noted that the violation by the employer of the employee's rights to the timely provision of unpaid leave indicates the employee's right to collection in accordance with Art. 237 of the Labor Code of the Russian Federation compensation moral harm caused by the employer's failure to act. In this case, the employer can be involved in administrative responsibility under Art. 5.27 of the Administrative Code of the Russian Federation.

In the Labor Code, only one article is devoted to unpaid leave - 128. Therefore, there are many questions with the provision and registration of such leave. In our article we will try to answer the most burning ones.

Question 1

The employee wrote an application for leave without wages due to the sending of her son to the army. However, an unfavorable situation has developed in the organization that does not allow the release of this employee now. Does the employer have the right to refuse to grant leave?

The Labor Code says that an employee can be granted unpaid leave for valid reasons. There is no definition of “good reason” in the Code. This means that the employer has the right to assess whether the reason given by the employee in the vacation application is valid.

The employer can fix in local regulations(for example, in the Regulation on internal labor regulations or in a collective agreement) a list of valid reasons for which an employee can apply for unpaid leave. At the same time, it is imperative to make a digression that if the absence of an employee may entail adverse consequences for the organization, then unpaid leave for the indicated reasons is not provided.

reference

Having analyzed the labor legislation, there are several reasons that are named as valid in certain legal acts:

• family circumstances;
• serious health condition of a close relative (father, mother, wife, husband, son, daughter, sibling) or guardian;
• seeing off to the army;
• fire or other disaster that befell the employee's family or close relative;
• child's vacation, quarantine in children's institution, seeing off to the summer camp;
• passing exams for obtaining a second higher education.

Question 2

The organization decided to conduct overhaul in the office building and send all employees on leave without pay for the duration of the renovation. How to arrange it correctly?

In this situation, it is better to ask, is it legal? Relying on the same article 128 of the Labor Code of the Russian Federation, let's say that leave without pay is granted if two conditions are met simultaneously:

• at the written request of the employee. That is, with this statement, the employee expresses his will to go on vacation. The employer has no right to force such a statement to be written;
• for good reasons. The reason must be valid for the employee. Therefore, even if the employer forces you to write an application for leave without pay due to "office renovation", Labour Inspectorate will indicate this "oversight".

In confirmation of our words, we will cite the still valid decree of the Ministry of Labor of Russia dated June 27, 1996, No. 6, which clearly states: “forced” vacations without pay on the initiative of the employer are not provided for by labor legislation.

There are two ways out of this situation:

1. In accordance with Article 157 of the Labor Code of the Russian Federation, pay employees downtime due to the fault of the employer in the amount of at least two-thirds of their average earnings.

To record the fact of downtime, you should issue a sheet of downtime in production. The form of the sheet is not approved by law, but it should indicate the beginning and end of the downtime, full name. employees and the reason for the downtime (Example 1 shows how you can create a blank time sheet). Then, based on this document, you should fill out the timesheet.

Example 1

2. You can try to come to an agreement with the workers. However, in this case, the employer will have to make some concessions. Let us explain. According to article 121 of the Labor Code of the Russian Federation, the length of service, which gives the right to an annual basic paid vacation, does not include the time of unpaid vacations with a total duration of more than 14 calendar days during the working year. However, the employer will not break the law if he provides the employee with leave earlier than the statutory deadline.

One more point. If the workers nevertheless agree and go on vacations without pay, then the procedure for obtaining such a vacation must be observed unconditionally. The employee will have to write an application for unpaid leave. In this case, it is better to indicate the reason for going on vacation is really valid (see Question 1). On the basis of the applications, orders must be issued for each employee, in which the employees will put their signatures.

Question 3

How to properly arrange for an employee to go on vacation without saving earnings?

Article 128 of the Labor Code of the Russian Federation says that such leave is granted to an employee upon application. In it, the employee must indicate the length of the vacation and the good reason why he is asking for it (see Example 2).

Example 2

On the basis of the application, an order is issued in accordance with the unified form No. T-6 (for a sample of order execution, see Example 3).

Example 3

Further, information about the leave provided is entered in the employee's personal card (on the 4th page of form No. T-2) and in the time sheet, where the vacation time is marked with the code "TO", if the vacation was granted with the consent of the employer, or the code "03" if the employee goes on vacation in accordance with the law. These marks are provided by the Pointer legend worked and unworked time, given in the unified form No. T-12, approved by decree Goskomstat of Russia from 05.01.2004, No. 1.

Question 4

In what cases is the employer obliged to provide leave without pay, in addition to those listed in Article 128 of the Labor Code of the Russian Federation?

To begin with, let us remind which persons the employer is obliged to provide leave without preservation of earnings in accordance with article 128 of the Labor Code of the Russian Federation :

• participants of the Great Patriotic War - up to 35 calendar days a year;
• working old-age pensioners (by age) - up to 14 calendar days a year;
• parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or mutilation received in the performance of military service duties, or as a result of an illness associated with military service - up to 14 calendar days a year;
• working disabled people - up to 60 calendar days a year;
• employees in cases of birth of a child, registration of marriage, death of close relatives - up to five calendar days.

The so-called "other" cases in which the employer is obliged to provide the employee with "no pay" leave are spelled out either in other articles Labor Code, either in federal laws or in a collective agreement.

Let's first look at the cases from the Labor Code. It says that unpaid leave is supposed to:

• employees admitted to university entrance exams - 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
• employees - students of preparatory departments of universities for passing final exams - 15 calendar days (Art. 173 of the Labor Code of the Russian Federation);
• employees studying at state-accredited universities on a full-time basis to undergo intermediate certification (15 calendar days in academic year), for the preparation and defense of the diploma and the delivery of the final state exams(4 months), for passing the final state exams (1 month). This is also stated in article 173 of the Labor Code of the Russian Federation;
• employees admitted to entrance examinations in educational institutions of secondary vocational education accredited by the state - 10 calendar days (Art. 174);
• employees studying in accredited educational institutions secondary vocational education in full-time training, combining study with work, for intermediate certification (10 calendar days in the academic year), for preparation and defense thesis and passing the final state exams (2 months), for passing the final exams (1 month). About this - article 174 of the Labor Code of the Russian Federation;
• part-time workers, if at the main place of work the duration of their annual paid leave is longer than at part-time work. The duration of the vacation in this case depends on the duration of the vacation at the main place of work (Article 286 of the Labor Code of the Russian Federation).

According to federal law unpaid leave is granted to the following categories of workers (see Table 1).

Table 1. Employees who, in accordance with federal laws in mandatory leave without pay

		Base
Heroes of Socialist Labor and full holders of the Order of Labor Glory	Up to three weeks	Federal Law of 09.01.1997, No. 5-FZ "On the provision of social guarantees to Heroes of Socialist Labor and full holders of the Order of Labor Glory"
Members election commission with the right of an advisory vote, the candidate's proxy	From the date of registration by the Central Election Commission of the Russian Federation of the list of candidates for the presidency or for the State Duma deputies until the day of the official publication of the election results	Federal Laws dated 10.01.2003 No. 19-FZ "On the elections of the President of the Russian Federation" and dated 18.05.2005 No. 51-FZ "On the elections of deputies to the State Duma Federal Assembly RF "
War invalids	Up to 60 calendar days a year
Certain combatants and others specified in the law	Up to 35 calendar days a year	Federal Law of 12.01.1995, No. 5-FZ "On Veterans"
Citizen doing alternative civilian service	The duration of unpaid leave (provided in accordance with the Labor Code of the Russian Federation) is increased by the number of days required to travel to the place of vacation and back	Federal Law of 25.07.2002 No. 113-FZ "On Alternative Service"
Military spouses	For the period of exceeding the duration annual leave military spouse	Federal Law of May 27, 1998 No. 76-FZ "On the Status of Servicemen"
Individual participants in the electoral process	At the time of the elections	Federal Law of 26.11.1996, No. 138-FZ "On ensuring the constitutional rights of citizens of the Russian Federation to elect and be elected to local government bodies"
Confidants of candidates	For the period of his office	Federal Law of 12.06.2002 No. 67-FZ "On Basic Guarantees electoral rights and the right to participate in the referendum of citizens of the Russian Federation "

In the collective agreement it may be stipulated that an employee who has two or more children under the age of fourteen may be entitled to additional annual leave without pay at a convenient time for up to 14 calendar days. The same guarantees may be provided for employees who have a disabled child under the age of eighteen, a single mother raising a child under the age of fourteen, and a father raising a child under fourteen without a mother. This is stated in article 263 of the Labor Code of the Russian Federation.

Question 5

The employee has not come to work for a week. His application came in the mail for three weeks of unpaid leave for family reasons. What should an HR officer do in this situation?

As already noted, unpaid leave is granted to an employee only with the consent of the employer (of course, if the employee does not fall into the category of persons who have the unconditional right to unpaid leave).

Therefore, if the employer, having received an application by mail, does not agree to grant leave to the employee, then the employee of the personnel service must draw up an act on the absence of the employee at the workplace in work time... Next, you should wait for the employee to leave the "vacation" and demand an explanation from him in writing. If he refuses, draw up an act about it.

After drawing up all required documents the employer has the right to either attract the employee to disciplinary responsibility in the form of a remark or a reprimand, or dismiss for absenteeism (subparagraph "a" of clause 6 of article 81 of the Labor Code of the Russian Federation).

Question 6

The employee went on vacation without pay for 6 months. At this time, the organization hired a new employee, concluding a fixed-term employment contract with him. After one month, the worker who went on vacation announced that he plans to return to work in the near future. Does he have the right to do so? How to arrange this early exit? What to do with an employee hired under a fixed-term employment contract?

V labor law the issue is not clearly settled early exit an employee from unpaid leave (for example, leaving early from parental leave at the age of 1.5 to 3 years). Therefore, we will figure it out on our own.

In this situation, two scenarios are possible. And everything will depend on the execution of a fixed-term employment contract.

Option 1. If a fixed-term employment contract was drawn up without specifying the exact end date, but with the wording "At the time of the performance of the duties of the absent _____________ (full name and position), for which the place of work is retained, in accordance with the law", then there will be no problems ... An employee who leaves vacation ahead of schedule writes a statement of his decision, appropriate changes are made to the order on granting unpaid leave, and the employee again takes his workplace... At the same time, the "conscript" is dismissed, since the term of his contract has expired, that is, an event has occurred that entailed the expiration of the contract.

Option 2. If a fixed-term employment contract indicates the exact date of its termination, in this case the consequences can be much more serious. The employer does not have the right to dismiss the "conscript" (after all, the term of the contract has not expired, which means that he has no grounds for dismissal).

It is clear that if the employer is happy with the early return of the employee, then he would better agree with the "conscript", pay him a decent monetary compensation and dismiss him by agreement of the parties or at the initiative of the employee. If the employer is not ready to incur financial costs (most likely, they are really considerable), then the question arises: can the employer not accept the "main" employee back before the expiration of his vacation?

The law does not contain a direct answer. Therefore, we will turn to a lawyer for advice.

Opinion

Zhanna Perevalova, Head of the Legal Department, MedBusinessConsulting LLC:

In my opinion, the employer has the right not to satisfy the application this employee on the "early termination" of unpaid leave for the following reasons.

According to article 128 of the Labor Code of the Russian Federation, an employee, upon his written application for family reasons and other valid reasons, may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer. In some cases, the employer is obliged to provide this leave. If we do not consider the cases of compulsory granting of unpaid leave, at least two conditions are always necessary and sufficient:

• the employee's own will, expressed in a written application,
• employer's consent.

Moreover, the period of this vacation is determined by agreement of the parties.

Consequently, in the absence of legislative regulation of the issue of "early termination" of unpaid leave, the parties to the employment contract must proceed from the same principles as when it was granted, namely, the two specified conditions will be sufficient:

• the employee's own will, who has expressed a desire to shorten his vacation in writing,
• the consent of the employer.

If the employer agrees, a corresponding order must be issued in free form (since there is no approved unified form), but containing all the required details.

In case of disagreement of the employer, a resolution about this is affixed on the application authorized person(as a rule, this is the sole executive body).

Keywords:

1 -1

The administration of the company can provide vacation at its own expense at the request of the employee working in the company. This period is characterized by the fact that during this period the employee retains a job, but the salary is not paid. An employee can usually take advantage of this leave only if the employer agrees to it.

Is the employer obligated to provide it

In order to arrange such a period, the employee must issue an application for unpaid leave.

This form is forwarded to personnel service, which transfers it to the head of the organization for his decision. At the same time, he formalizes it by imposing a resolution on the statements either with consent or with refusal.

Holidays at their own expense can only be issued to persons who have, if they have valid reasons for this. Often the reason for such a statement can be family circumstances.

Providing self-sufficient leave is an employer's right, not an obligation. Therefore, the employee needs to convince him that he needs it. To do this, you can attach supporting documents to it when writing an application.

The manager, when he decides to grant leave at his own expense, takes into account the production needs at the enterprise. It is possible that he will make a negative decision at the request of the employee, even if the latter has valid supporting documents.

Legislation allows him to refuse an employee's leave application at his own expense. At the same time, the administration should not explain why it makes a negative decision.

The employee can ignore the director's refusal to grant leave, and not go to work. Then the administration of the company can issue absenteeism, for which the employee will most likely be fired.

Important! The director also decides how long the vacation will be. The employee can only request the desired days. The manager can give permission for vacation, but reduce its duration.

But there are cases when an employee can only send his employer an application with notification of such a vacation, he does not need to obtain permission from the manager.

When an employer cannot refuse

Norms labor law establish situations when an employee should be granted leave at his own expense without taking into account the opinion of the employer:

• When a new-born child appears in the family of an employee of the company, a copy of the birth certificate must be attached to the application.
• When an employee of the company marries, a copy of the marriage must be attached to the application.
• If someone close to an employee of the company has died, the respect of this period is confirmed by a copy of the death certificate.

On the basis of an application, the employee can be granted leave for a period of up to five days.

Also, the norms establish the right of certain categories of citizens to take leave at their own expense, without obtaining the consent of their employer.

These include:

• If an employee of the company is a working pensioner, during the year, upon application, he can be granted leave at his own expense for up to 14 days.
• An employee who belongs to the category of participants in the Second World War - during the year, upon application, he can be given a vacation of 35 days.
• Employees with a disability group can, upon application, request leave from their employer at their own expense for a duration of 60 days.
• If the employee is a member of the family in which the soldier died, then they are allowed to take leave, if necessary, at their own expense for a period of up to 14 days.
• Some federal laws grant self-employment leave to certain employees. An example of such a situation is the provision of vacation at their own expense to part-time workers, persons who combine work with studies, persons caring for relatives.

The administration of the company may provide for other cases when the employer must provide his employee with unpaid leave. They must be listed in the internal acts of the enterprise.

Attention! The employee can take leave at his own expense for the entire duration that is established by law or break this period into parts.

If an employee can count on several benefits for this vacation at once, then the periods cannot be summed up. He must choose the one that is most beneficial to him.

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Accident at work (at work)

Is it legal to provide it at the initiative of the organization

Sometimes a difficult economic situation arises at the enterprise, when there is a decline in production or cash flow.

Then the management decides to send some of the employees on vacations without retention, thereby saving on wages and social benefits. After all, downtime that occurs through no fault of the employees is still subject to payment.

In this case, the director usually invites the employee to his place and to verbally we offer him to issue a vacation for a certain period of time without payment.

However, the law prohibits forcing employees to do this. If in the future he can prove that he did it under duress, then the administration will be punished. In addition, she will still have to pay cash for the days when the employee did not work.

Another reason when an employee is most often offered to take leave without pay is if he has made absenteeism without a good reason.

Obtaining such leave will enable the employee to avoid disciplinary punishment. Vacation registration in this situation is carried out according to the same scheme - by submitting an application to the director.

For the guilty employee, such a step will be very beneficial - he will be able to avoid any punishment and keep his place of work.

At the same time, the administration will no longer be able to use this misconduct as a reason for dismissal - after all, the supporting documents will not be drawn up, and there will be a mark on the receipt of leave in the report card.

How many vacation days an employee can take at his own expense per year

It must be remembered that maximum term according to the Labor Code of the Russian Federation, such leave is not established.

When an employee wants to get such a vacation, he draws up an appeal to the manager and indicates the desired number of days. In this case, the application must indicate the reason for the vacation.

The manager considers the appeal and can make one of the following decisions - refuse vacation, provide it in full requested amount, or provide it based on the available production capacity.

Practice shows that most often the term is set by agreement between the administration and the employee.

For certain categories of workers (for example, civil servants or municipal workers), a separate federal laws may limit the length of the rest period. So, for the mentioned categories, the duration of unpaid leave cannot exceed 1 year.

When requesting a vacation period, an employee must remember that only 14 days are included in the calculation period for the basic labor leave. All other days will shift its advance.

The procedure for registering an employee's vacation at his own expense

Step 1. The employee submits an application

If an employee wants to get leave without pay, he must apply with this request to the manager.

To do this, use a statement written by hand or typed on a computer. Also, very often the HR officer has a ready-made template in which the employee must simply enter his personal data.

In the application, the employee shall fill in the following information:

• The reason for going on vacation without pay;
• The day from which he wants to get vacation;
• The length of the period in calendar days.

It is advisable to indicate the reason for granting leave in the application, since it is necessary to convince the manager to provide such a period. This must be done even if the reason is personal - this will relate to personal data, and therefore must be processed and stored in accordance with the law.

If vacation is requested due to the occurrence of an event, then it is necessary to indicate this in the application and attach a supporting document.

It may so happen that on the day of registration of the application, such a document will not be on hand - for example, when a child is born, a certificate is issued later. Then in the appeal, you can put down the date until which the employee undertakes to provide a copy of the form.

Step 2. Drawing up a vacation order

To confirm the granting of leave, the manager must affix his visa on the employee's application. Further, the application must be returned back to the personnel officer, who, on the basis of it, must issue an order for granting leave.

For orders, they usually use (if one person goes on vacation), or T-6a (for a group of workers). In addition, according to the law, you can issue an order on a letterhead in a free form.

When using a standard form, it is necessary to enter the information immediately into section "B", and section "A" remains empty. The phrase "Leave without pay" is used to refer to vacation. The number of days for which the vacation is granted is also indicated.

Information from section "B" must be duplicated in section "C".