Can I get holiday pay? Compensation for all unused holidays - are there limits

Due to the peculiarities of the work of our company, some employees do not take full annual leave. As a result, some employees have accumulated up to 50 days of vacation in previous years. Can we not provide them with vacation, but pay monetary compensation, or are vacations not used within two years canceled?

According to Art. 126 of the Labor Code of the Russian Federation, a part of the annual paid leave exceeding 28 calendar days, upon a written application of the employee, can be replaced by monetary compensation. However, it must be borne in mind that the duration of an employee's vacation is, as a rule, 28 calendar days (Article 115 of the Labor Code of the Russian Federation). Only certain categories of workers are granted leave in larger size. For example, for employees under the age of 18, vacation is 31 calendar days (Article 267 of the Labor Code of the Russian Federation).

Therefore, if the duration of the vacation of employees who did not use it in a timely manner is 28 calendar days, you cannot pay them monetary compensation in return for the vacation. The exception is compensation payments for all unused vacations upon dismissal of an employee (Article 127 of the Labor Code of the Russian Federation).

This position is also confirmed in judicial practice.

Thus, the court concluded that compensation for unused vacation provided for by labor legislation is possible only if the part of the vacation it replaces exceeds 28 calendar days. If such part of the employee's vacation is 28 calendar days or less, labor legislation does not allow payment of compensation for unused vacation (Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 17, 2009 No. A46-9365 / 2009).

In another case, the court emphasized that the current labor legislation does not provide for the possibility of accruing and paying monetary compensation for unused vacation in the part not exceeding 28 calendar days. Therefore, the employer, who replaced the annual paid leave, not exceeding 28 calendar days, with monetary compensation, violated the law (Resolution of the Federal Antimonopoly Service of the Urals District dated July 20, 2010 No. Ф09-5456 / 10-С1).

In addition, the court came to the conclusion that if there is an agreement between the employer and employees on the replacement of a part of unused vacations of more than 28 calendar days with monetary compensation, unused vacations of employees can be summed up for all periods in which such vacation was not used. In this case, the period was several years (decree of the Federal Antimonopoly Service of the Moscow District dated 09.07.2010 КА-А40/6678-10).

Please note: art. 124 of the Labor Code of the Russian Federation prohibits not to provide annual paid leave for two consecutive years. Therefore, by not granting leave to the employee during this time or more, the company violates the labor legislation of the Russian Federation. Such a violation shall entail the imposition of an administrative fine on officials in the amount of 1,000 to 5,000 rubles, on persons carrying out entrepreneurial activity without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days, for legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). If a violation of labor legislation is committed by an official who has previously been subjected to administrative punishment for a similar offense, disqualification from one to three years is possible as a punishment.

Meanwhile, Art. 124 of the Labor Code of the Russian Federation allows the transfer of vacation to the next working year. At the same time, the employee must use the vacation not taken off in connection with the postponement no later than 12 months after the end of the working year for which it is granted.

However, vacation cannot be automatically rescheduled. For such a transfer, two conditions must be met.

First, the postponement must be due to exceptional circumstances, in connection with which the granting of leave to the employee in the current year will adversely affect the normal course of the company's work.

The Labor Code does not contain a list of exceptional cases and the procedure for their confirmation. Therefore, in order to avoid possible disputes, the head of the company may issue an order (instruction) that lists such circumstances (for example, a long-term illness of an employee who could act as an employee going on vacation).

The second condition for transferring vacation is the consent of the employee. The form of consent of the employee to postpone the vacation is not established. In our opinion, such consent can be confirmed by the inscription “Agreed” made by the employee himself on the above order (instruction) and the personal signature of the employee. Also, the order will need to indicate the date of familiarization with it.

Regarding the cancellation of vacations, we note the following. There are no provisions in the Labor Code that unused vacations of employees in a timely manner are cancelled. Thus, the right to the number of vacation days due to the employee remains with him, regardless of how many years he has not been granted vacation.

Labor legislation allows you to replace with monetary compensation that part of the vacation that exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation). That is, only the employee who, along with the main vacation, which is 28 days, is annually provided with additional days of rest, can claim a cash payment.

Note that such days can be provided both at the request of the law (see table), and at the initiative of the employer himself. In the latter case, the right to additional leave is established by the labor (collective) agreement.

1 Exact amount additional days of rest the employer must specify in the collective or employment contract.

An employee who is entitled to a vacation of more than 28 days, who wants to receive money instead of a vacation, must write an application. True, the employer is not obliged to comply with the request of the employee. That is, he can refuse to pay compensation and send the employee on legal leave.

When Compensation Cannot Be Provided

Even if an employee is entitled to leave in excess of 28 calendar days, he may fall into the category of persons who cannot replace vacation with money. So, they should actually rest the time prescribed by law, and not choose money instead of vacation (Article 126 of the Labor Code of the Russian Federation):

• pregnant women;
• minors;
• persons employed in work with harmful or dangerous working conditions.

If the employee has the right to choose money instead of vacation, and the employer agrees to pay the employee's additional vacation in money, then we will tell you how to calculate compensation in this case.

To determine the amount of compensation, the average daily earnings calculated for vacation pay must be multiplied by the number of compensated vacation days.

The formula for the calculation is given below (Article 139 of the Labor Code of the Russian Federation):

Example. Worker M.A. Evseev is disabled. Its duration annual leave(main and additional) is 30 calendar days (28 calendar days + 2 calendar days). In 2012, he rested for 28 days, and in 2013 - 14 days. Part of last year's vacation was postponed due to operational needs. In 2014 M.A. Evseev applied to the employer with a request to pay him compensation for unused vacation. Average daily earnings of M.A. Evseev - 1032 rubles. How many vacation days for both years is the employer entitled to compensate the employee with money?

Solution. You can pay money only for those parts of the vacation that exceed 28 calendar days. The worker M.A. Evseeva is 2 calendar days for 2012 and 2 calendar days for 2013. The amount of compensation due to him will be 4128 rubles. (1032 rubles × 4 calendar days). The remaining 14 days (30 calendar days + 30 calendar days - 28 calendar days - 14 calendar days - 4 calendar days) the employee must take time off.

• When can vacation be replaced with monetary compensation?
• Can an employer refuse to replace vacation with monetary compensation?
• What if an employee has not gone on vacation for more than two years?
• How to calculate how many days an employee is entitled to compensation if he took a vacation at his own expense?
• How to arrange for a vacation to be replaced with monetary compensation?

In what cases can an employee receive money instead of vacation?

We have employees in the company who refused to go on vacation. Many of them have accumulated a decent amount vacation days. Now they are asking for financial compensation. Can we go to meet them?

First, check whether the desire of employees complies with the law. Financial compensation for unused vacation is paid:

• upon dismissal of an employee who did not use his right to leave (monetary compensation is provided for all days) (Article 127 of the Labor Code of the Russian Federation, clause 28 of the Vacation Rules);
• when replacing with compensation a part of annual leave that exceeds 28 calendar days, that is, for additional leave (Article 126).

Employees who cannot replace vacation with monetary compensation

Additional holidays are provided both at the request of the law and at the initiative of the employer on the basis of a collective agreement or local regulations (see table).

Attention!
Holidays that are not annual cannot be compensated with money. For example, additional days off provided monthly to parents of disabled children (part 1 of article 262 of the Labor Code of the Russian Federation).

Employees who need to be granted additional leave

Is compensation paid to an employee when he is transferred to another position?

The employee is transferred to another position due to the reorganization of the company. Is the employer obliged in this case to pay him compensation for unused rest days?

No, not required. After all, after the reorganization labor Relations employee and company continue (Article 75 of the Labor Code of the Russian Federation) and there is no change of employer. Compensation for unused vacation cannot be paid if the employee is transferred to another separate division of the organization, since it is not a separate legal entity(clause 3, article 55) and cannot be an employer (article 20 of the Labor Code of the Russian Federation). If an employee is transferred within the holding from one company to another, then compensation must be paid, since in fact this will be a dismissal (Article 127 of the Labor Code of the Russian Federation).

Related Documents

How to justify the refusal to replace vacation with monetary compensation?

Our company is located in the Far North. We denied employees compensation for unused vacation, but they ask why. Can you please tell me how to justify this?

Explain to employees that it is up to the administration of the organization to decide whether to pay their staff compensation for unused vacation or not. For work in the regions of the Far North, the legislator obliges to provide additional leave in the amount of 24 calendar days (Article 321 of the Labor Code of the Russian Federation). However, to pay compensation instead of it is the right, not the obligation of the employer (Article 126 of the Labor Code of the Russian Federation, letter from Rostrud dated March 1, 2007 No. 473-6-0).

In the Judicial Navigator service of the Kadrovoe Delo magazine, you will find a labor dispute over the duration of additional annual leave.

What if the employee has not gone on vacation for several years?

The programmer has not gone on vacation since 2010. The management was fine with this, but now the employee has accumulated 56 non-vacation days. It is impossible to compensate for such a vacation with money. The employee agrees to use them in 2012 by adding them to the current vacation. Can we provide such a long vacation?

Yes, and try to do it as quickly as possible. The organization is obliged to provide each employee with a vacation of at least 28 calendar days annually (Articles 115, 122 of the Labor Code of the Russian Federation). It can only be carried over to the next year. rare cases according to production needs (part three of article 124 of the Labor Code of the Russian Federation). Even with the consent of the employee, the employer is not entitled to leave him without vacation for more than two years in a row (part four of article 124 of the Labor Code of the Russian Federation).

Thus, the situation when an employee has not rested for more than a year is a violation labor law. If labor inspectors discover this during the inspection, they will most likely issue an order to eliminate this defect. And later they can be fined in accordance with Article 5.27 of the Code of Administrative Offenses. If, due to some circumstances, the employee has not been on vacation for a long time, this does not deprive him of the right to take the accumulated days off now, adding them to his vacation for the current year. After all, non-holiday vacations do not have a statute of limitations: those who have not used them over the past years can take them off later. If at the time of the check you have time to provide the employee with all the accumulated holidays, then labor inspectors will not have the right to impose a fine for violating labor laws.

Attention!
It is impossible to issue compensation for the days received as a result of summing up several annual basic holidays, even if the employee wishes to do so (Article 115 of the Labor Code of the Russian Federation).

Lawyer's comment

Lali Chitanawa,
Attorney at Law, Partner at VASILIEV & Partners Law Office (Moscow):

– July 1, 2010 Russia ratified Convention No. 132 international organization Labor "On paid holidays" *. In accordance with Article 9 of the Convention, an uninterrupted part of the annual paid leave (at least two weeks) must be granted within a year, and the rest of the leave within the next 18 months. This is the maximum period for which an employee's vacation can be postponed (unused days do not burn out, but are transferred).

Any part of the annual leave in excess of the established minimum duration may be delayed with the consent of the employee for a longer period. Unlike the Convention, the Labor Code obliges an employee to provide paid leave every year and prohibits not providing annual paid leave for two consecutive years. Thus, a vacation of at least 28 calendar days must be granted to an employee for each working year worked by him.

* Adopted in Geneva on June 24, 1970 at the 54th session of the ILO General Conference. Convention ratified with declarations federal law dated July 1, 2010 No. 139-FZ.

How to calculate compensation if a part-time worker took a long vacation without pay?

The part-time worker got a job in the organization on June 4, 2012, and left on November 26. He did not go on annual leave, but he took a vacation from November 6 to November 23 at his own expense. His paid vacation is 28 days. How to determine the number of days for which compensation is due?

e.kdelo.ru
Article in the topic: “We arrange a vacation for an external part-time job: what features should be taken into account? » (№ 6, 2012)

Recall that part-time workers are provided with the same guarantees as all other employees (Article 287 of the Labor Code of the Russian Federation).

Let's count. The period from June 4 to November 3 is five months that the part-time worker has worked completely. From November 4 to November 26, he worked five days and was on leave without pay for 18 days. Of these, 14 days must be included in the length of service (Article 121 of the Labor Code of the Russian Federation). The total is 19 days, which are rounded up to full month 1, and the length of service giving the right to leave will be six months. Thus, your employee is entitled to compensation for 14 days of unused vacation (28 days : 12 months x 6 months).

Experience giving the right to annual leave (Article 121 of the Labor Code of the Russian Federation)

Dismissal after the decree: how to calculate the number of days of unused vacation?

Before going on maternity leave, the employee used all her vacations. After the first birth, she went back to maternity leave, and after the second birth, she quit during the period of leave to care for a child up to three years. Is she entitled in this case to compensation for unused annual paid leave for 140 days of decree?

Yes, it is. The time spent on maternity leave is included in the total length of service giving the right to leave (table above). But the period when a young mother was on parental leave up to three years old is excluded from it (part two of article 121 of the Labor Code of the Russian Federation). That is, for 140 calendar days, or 4 months and 17–19 days, while maternity leave lasts, a woman will earn 11.67 calendar day vacation (28 days : 12 months x 5 months), for which she must be paid compensation upon dismissal.

Advice
When calculating unused vacation days, keep in mind that when an employee is on parental leave, the working year is extended by the corresponding number of days.

What is the procedure for replacing vacation with monetary compensation?

If an employee is entitled to three days of additional leave for an irregular working day and he did not use it, then he may be paid monetary compensation. How to issue compensation to all employees who are entitled to additional leave, but did not use it?

To replace additional leave for an irregular day with monetary compensation, the employee must write a free-form application addressed to the head of the organization (see sample). The main thing is to indicate for which vacation and for what period the employee asks for compensation. This will help to correctly take into account vacations and those days that the employee has not yet used. An employee may choose any portion of the extra leave to replace it with compensation.

In the “Virtual Personnel Officer” service of the Kadrovoe Delo magazine, you will find personnel documents: calculation of compensation for unused vacation, a note-calculation for granting vacation, notification of an employee about an upcoming vacation.

Based on the application, the head issues an order. There is no unified form, so make it in any form (see sample). Acquaint the employee with the order against signature. The Labor Code does not say anything about the deadline for paying compensation at the request of the employee, so it can be issued along with the next salary.

Enter information on replacing part of the vacation with monetary compensation in section VIII of the employee's personal card form No. T-2. In addition, reflect the relevant information in the vacation schedule (form No. T-7). To do this, in column 10 “Note”, make a note that part of the annual leave (indicate the number of days) has been replaced by monetary compensation, and provide the details of the order.

Law versus practice

On practice

Company executives meet the wishes of employees and pay them compensation for unused vacation, which does not exceed 28 days.

In law

In accordance with the first part of Article 126 Labor Code replacement with monetary compensation for vacation not exceeding 28 days is not allowed.

What happens if…

If the issuance of monetary compensation to an employee instead of a vacation is firmly established in the practice of your company, then you may come down with a check. In this case officials faces a fine of 1,000 to 5,000 rubles, and the organization itself - from 30,000 to 50,000 rubles. (Part 1, Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Material prepared Svetlana Nikulina,
journal expert
"Personnel business"