09.10.2019

Irregular working hours according to the Labor Code of the Russian Federation. What is required for irregular working hours?

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Hello! In this article we will talk about irregular working hours.

Today you will learn:

What are the differences between irregular work and;
What payments and “time off” are a citizen entitled to for an irregular schedule;
Which employees can work in this mode.
What changes need to be made to internal documents.

Definition of irregular working hours

Each company has its own rules and procedures.

One of the main indicators reflected in all internal documents of the company is the standard working time, namely:

Number, sequence of working days and weekends;
Time boundaries of the working day;
Time, number of breaks.

But what should an employer do when an employee’s activities are sometimes required at other times outside the standard schedule? The first option is to arrange overtime work each time, the second option is to transfer the employee to an irregular schedule.

Example. Sidorov Yu. works at the company as system administrator. Working hours for all company employees and for Sidorov in particular are from 9:00 to 18:00 from Monday to Friday. But Sidorov is responsible for all the computers and servers in the office, which often fail, which is why the employee sometimes has to stay late at work or arrive earlier than others. In such a situation, the manager makes an informed decision to transfer the position of system administrator to irregular working hours.

The schedule described above means that, at the direction of management, some employees are periodically required to perform their duties outside of standard work hours. At the legal level, its description is given by Article 101 of the Labor Code of the Russian Federation.

An employee can work no more than 120 hours overtime per year, however, if he officially switches to irregular work, these restrictions are lifted.

For an entrepreneur, working in an irregular mode has its advantages:

An employee is allowed to be involved in work at any time of the working day (but not regularly);
Overtime does not affect wages;
The employee's consent and written order are not required.

The benefit of the subordinate is noticeably less. All that the law guarantees him for an unstable work schedule is a few bonus paid vacation days per year. Therefore, many citizens consciously refuse such positions or demand higher wages.

Difference from overtime

Irregular working hours are sometimes mistakenly confused with overtime work However, at the legal level these concepts have little in common.

Features of the work schedule

The permissible number of overtime hours during irregular working hours has not been established; however, there are other restrictions regarding the systematic nature of extracurricular activities. An employee has the right to file a complaint with the prosecutor's office if overtime has become permanent.

Irregular working hours mean that only in some situations, occasionally, an employee is forced to stay late or arrive earlier than his colleagues. This does not give him permission to violate labor discipline, be late, or leave work early. Irregular work does not at all imply a flexible schedule.

The manager sets the permissible number of overtime hours at his own discretion, and the employee agrees.

On weekdays, the manager has the opportunity to call an employee with irregular working hours to work with only one verbal notification. But on weekends and holidays, extracurricular work will require a written order, voluntary consent of the employee, as well as separate payment.

Work at night (22:00-6:00) with irregular hours is paid at the daily rate, unless other conditions are specified in the contract with the employee.

Another limitation concerns the type of activity. Prohibited under pretext irregular days involve a subordinate in performing additional functions. Outside the main schedule, he can only carry out his own job responsibilities.

The legislation does not oblige entrepreneurs to keep records of additional time worked in positions with irregular working conditions. Moreover, overtime is not paid, which means it cannot be included in the main time sheet.

On the one hand, this simplifies the “paper” work in the company, but experts still recommend recording overtime hours in a separate journal. This will allow you to control the frequency and systematicity of employee involvement in work.

Positions with irregular working hours

A complete list of positions held in a particular organization on irregular working hours is compiled by the manager and recorded in internal regulations.

It is advisable to introduce an irregular work schedule for those employees who may be needed at the workplace in emergency situations.

Typically, such employees include:

Administrative staff economic activity, maintenance (supplyman, watchman, serviceman);
Citizens on a free work schedule who independently distribute their time, or whose work consists of several parts of unfixed duration (designers, journalists);
Employees whose work time impossible to count (realtors, instructors, sales agents);
Leaders.

It is prohibited to establish irregular working hours for the entire team.

Before assigning an irregular work schedule, it is recommended to consult with a specialist in personnel matters, since the nuances of the law prohibit irregular work for a number of professions. For example, truckers and taxi drivers cannot be put on irregular days, as overwork can cause them fatigue, which is dangerous for other people.

How to introduce irregular working hours at an enterprise

Before hiring an employee for irregular working hours, you must make sure that he does not fall into one of the categories of citizens for whom such work is prohibited by law.

Pregnant women;
Women with children under three years of age;
Single mothers or fathers;
Guardians of minor children;
Minors;
University students;
Disabled people.

Step 1. The head of the organization makes changes to internal documents.

He writes and states:

List of frames falling under this mode. It will no longer be possible to transfer other workers to irregular hours;
Regulations on the conditions of irregular working hours;
Working hours rules.

Some experts advise including in internal regulations an approximate list of episodes in which employees may be involved in overtime. You should not try to list all the cases - it is impossible.

Moreover, this does not need to be done so as not to set strict boundaries where they should not be (otherwise conflicts with subordinates may arise). Such an approximate list is needed to control the legality of recruitment; it can become a guarantee for the employee that he is not being exploited, that all actions are carried out in accordance with regulations.

Step 2. The manager presents the new conditions to all employees.

Familiarization is confirmed by their signatures. Employees are notified of the introduction of changes to the regime no later than 2 months in advance.

Step 3. An order is issued to establish irregular working hours.

Sample order establishing irregular working hours

Step 4. Previously hired employees are given an additional agreement to sign.

The employee may refuse the new conditions, then the employer may offer him another suitable position or terminate the contract. In the future, employees will be immediately hired under a new contract that describes all working conditions.

Registration in an employment contract

Sample employment contract with irregular working hours

In order to transfer an employee to an irregular day according to all legal rules, you must first approve a list of positions that, for objective reasons, fall under such a schedule, then make changes to the internal acts of the organization and, finally, add a clause to the employment contracts.

The following points must be included in the employment contract:

Standard working and weekend hours;
Time frame for one work shift;
Number of breaks;
A link to an order or other document containing a list of positions and the rationale for this decision;
The procedure for involving a subordinate in activities outside the main working hours;
Duration of additional leave, procedure for its provision.

Correct execution of the employment contract is a guarantee that in the future the manager will not need to obtain consent from the subordinate for every extracurricular activity.

Vacation for irregular working hours

The irregular regime is spontaneous, it is almost impossible to give an objective assessment to it. Overtime is difficult to measure and value, and there are no additional rates for it like overtime.

Therefore, all that, according to the law, an employer gives an employee for agreeing to work in an inconvenient mode is bonus days of paid leave. There may be 3 or more of them per year, depending on the characteristics of the work. When asked about exact quantity the law does not give an answer for days; their number is stated only in the internal documents of the organization.

The law stipulates only a minimum value, but entrepreneurs have the right to increase the number of days of their own free will.

Citizens working on irregular working hours are entitled to their own annual bonus - at least 3 paid days off.

Such leave is given in addition to the main annual one, according to the vacation schedule or the employee’s application addressed to the manager. It is also paid according to the standard procedure - its amount depends on the average salary.

The employee is given the right to such leave immediately after the entry into force of the employment contract, regardless of whether or not he had overtime. The number of days on vacation is always fixed and also does not depend on the hours worked.

Sometimes vacation days are replaced by monetary compensation:

After dismissal, if the employee has unused vacation days.
At the request of the employee through a written statement (except for pregnant women and minors). However, such compensation for bonus leave looks controversial from the point of view of labor legislation. There is an opinion that the Labor Code of the Russian Federation does not provide for such a procedure, which means that the inspection authorities may have claims against the employer.

The procedure for calculating vacation pay and compensation for irregular working hours

The amount of vacation pay is determined by the formula:

Sum up your earnings for the previous 12 months of work. Only taken into account wage, and other benefits (sick leave, vacation pay) are excluded.
Calculate the number of days worked during the period. A fully worked month is equivalent to an average of 29.3 days. If an employee was incapacitated for several days, you can use the formula to calculate: (Number of days in a calendar month - Days not counted) * 29.3 / Number calendar days month. Sum values for 12 months.
Calculate the average daily earnings by dividing the total earnings (point 1) by the number of days (point 2).
The amount of vacation pay (vacation compensation) will be equal to the product of the average daily earnings and the number of vacation days.

Article 101 of the Labor Code of the Russian Federation is devoted to irregular working hours. But nevertheless, this concept raises many questions due to vague legal wording and frequent confusion with the concept of “overtime”.

Irregular working hours - what does it mean?

Wording in the Labor Code of the Russian Federation

Irregular working hours are a special working regime in which individual employees may occasionally, not constantly, be involved in performing their labor functions beyond the direction of management.

Video - irregular working hours according to the Labor Code of the Russian Federation - what does this mean (comment from a lawyer):

The employee’s consent is not necessary in this case, since the condition of an irregular day is necessarily fixed in his employment contract. Such processing should not occur regularly, but only when absolutely necessary or urgent (for example, preparing for a tax audit or submitting a project).

To whom and to what positions does it apply?

It is the employer's responsibility to approve the list of positions for employees with irregular working hours. Employees working in these positions are allowed to work outside of working hours. These positions are prescribed in the internal documents of the organization.

Typically the list includes the following categories of workers:

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

Irregular working hours - how many hours per week?

The current labor legislation, unfortunately, does not define in any way maximum amount hours of processing at this operating mode.

Extra-hour involvement of employees is allowed both before and after normal working hours for as long as management needs.

The main thing is that these attractions do not turn into a system, but are used only when it is really required.

How is it compensated?

Increased workload and involvement in work outside of working hours compensated by providing the employee with at least three additional paid vacation days.

The duration of the additional one is allowed to vary depending on the position held, degree of workload, volume of work, etc.

ATTENTION! The fact of providing additional vacation days is in no way related to actual cases of overtime. Even if during the working period the employee was never involved in work outside of working hours, he is entitled to additional leave in full in any case.

At the request of the employee, it is possible to replace additional vacation days with monetary compensation calculated based on average monthly earnings. At the same time, the law does not oblige the employer to pay compensation, that is, he can refuse it and send the employee on leave.

Video about compensation for irregular working hours:

Organizations are allowed to introduce additional types of compensation for irregular working hours, recording them in the internal documents of the organization.

Registration procedure

If the employer decides to introduce irregular working hours for some positions, the registration procedure will be as follows:

The employer needs to determine and approve the list of these positions and make appropriate changes to the internal rules labor regulations and collective agreement.
Provide a list of all employees affected by the changes against signature. Employees must be notified by order to change the work regime at least two months in advance, and an additional agreement to the employment contracts must be issued and signed. Newly hired employees for these positions immediately sign an employment contract containing a provision for irregular working hours.
When an employer needs an employee to work beyond his working hours, he notifies him of this. Labor legislation does not in any way determine the form of the order (notification), that is, both oral and written forms (order) are allowed. In practice, it is more advisable to use written orders to avoid possible disputes.
The employer is developing a document in which overtime hours will be entered, since overtime employees with this work schedule are not shown.

Nuances you need to know about

Management should not involve employees with irregular hours beyond the schedule to perform functions that are not part of their job responsibilities.
Irregular working hours are allowed for employees with a part-time work week and, on the contrary, are prohibited for employees working part-time.
Such workers, like others, do not work on weekends and holidays. Their involvement in performing work duties on these days is carried out on a general basis with additional payment, unless otherwise specified in the local documents of the organization.
It is prohibited to introduce irregular working hours for all employees of the enterprise.

Irregular working hours and overtime work - differences

At first glance, it may seem that these are identical concepts, which is why they are so often confused. Basic features and the difference between irregular working hours and overtime work are presented in the table:

For whom it should not be installed

Labor law norms do not provide a specific list of persons who cannot be subject to this regime. However, a cumulative analysis of Articles 97, 99 and 101 of the Labor Code of the Russian Federation allows us to conclude: it cannot be installed on employees who are prohibited by law from being employed outside working hours.

Thus, it is prohibited to leave people to work overtime, and, consequently, to introduce an irregular day:

pregnant employees;
minor workers;
employees during apprenticeship.

The involvement in overtime work is limited (mandatory written consent and the absence of medical contraindications is required), and, consequently, the introduction of irregular days for:

persons with disabilities;
women with children under 3 years of age;
single fathers;
guardians of minors.

Where to go if your employer abuses irregular working hours

There is no legal limitation on the time and frequency of overtime for employees during irregular working hours. Because of this, in practice, employers often abuse this regime - overtime becomes systematic rather than occasional, and some do not introduce an irregular day at all and do not pay overtime as overtime.

If, during an inspection, the labor inspectorate determines that overtime was regular, the employer may be fined and required to pay for it as overtime.

However, the inspector can issue an order to do this only in the case of a gross obvious violation, therefore, in order to resolve a labor dispute in this case, it is recommended to apply to the courts.

Summary

In essence, irregular working hours are episodic, irregular overtime. The main features of such a working regime are that the employer, due to real necessity, has the right to require the employee to stay after work or come to work. workplace earlier .

It is not necessary to obtain the employee’s consent each time, since he has already agreed to this working regime when signing the employment contract. At the same time, the law does not regulate in any way the duration or frequency of such processing. Compensation for them is the provision of additional paid leave.

Video about long working hours and overtime:

Discussion (20)

I work in the north at an oil producing company in the city of Noyabrsk. The impudence of this company is very great and endless. We work with irregular working hours, in fact it turns out that I woke up at 5:50 in the morning, left for work at 6 in the morning, and arrived only at 22:00 and it’s good if I arrived at all! They can leave it for a day (if some serious well is not working). To be honest, I’m very tired of this, my family doesn’t see me at home, and it doesn’t affect my salary in any way. I don’t know what to do.. maybe you can advise something..

Can long working hours apply to road service employees? After all, people already work all day long, but previously they were paid for overtime, and now, if I understand correctly, a person will work 12 hours every day for 3 additional paid days for vacation?

It seems to me that today's lawyers do not really understand what an “irregular day” is. This concept comes from the Soviet Labor Code. I once read a commentary by a Soviet specialist. In the word “non-standardized,” the word “norm” does not define the standard working time (8 hours), but the range of responsibilities that cannot be standardized. For example, during a shift a cleaner must wash 300 m2, i.e. her day is standardized (the norm is 300 m2), the driver must make 10 trips per shift, the guard must guard the facility for 15 hours per shift (the shift can be more than 8 hours), here the work norm is determined by the duration of the shift, etc. There are a lot of jobs like this, where the duration of the shift is the norm of work, a shift worker comes - your norm is fulfilled. But it is impossible to calculate how many calls the boss (deputy, accountant, engineer, etc.) will make, how many issues will be resolved, situations resolved, and people received. Their workload cannot be calculated, so they have irregular days. Moreover, this irregular day may not last 8 hours at all, but much longer, until the necessary duties are completed. An irregular day is a special mode of work in which the main thing is not working hours, but the nature and volume of work. But this does not mean that I come and go when I want, no one has canceled the work schedule. TCs and enterprises must compensate for overtime, nerves, and inconveniences associated with irregular days (additional vacations, time off, bonuses). Overtime, logically, can only happen on a normal day. Overtime is beyond the lesson, i.e. above the norm. But nowadays everything can be turned upside down.

I believe that this behavior of employers is largely due to the fault of the employees themselves, who do not know their rights and live with the feeling that the employer is almost the “master”. I understand that many people are afraid of losing their jobs, but as long as we remain silent like a flock of sheep, nothing will ever change. What is this “formulation “they are forced to stay until night every day”? Don’t stay, and refer to the Labor Code of the Russian Federation, which nevertheless states that involvement in work on irregular working hours should be episodic. What does “if you don’t like it, quit” mean? To fire a person, very serious work is required, and the employer may face serious consequences for illegal dismissal (unless, of course, the person “keeps his mouth shut”). Dismissal by at will happens only at the request of a person, this is your right, not an obligation. And if they tell you - quit, you can answer that you don’t have such a desire, of course there is, if you are undisciplined and do not fulfill your duties, then, if there is evidence, you may be fired, but if you are a conscientious and disciplined employee, you have nothing to fear . I believe that everyone must fulfill their assigned responsibilities, both the employee and the employer, and it is not worth “tolerating” the bestial attitude of the employer.

My husband works as a driver with irregular working hours. The daily working day is 13-14 or more hours. The deputy manager must be transported to and from work. There are no orders to transport him home and to work. It’s a state-owned enterprise. The only excuse is if you don’t like it, quit. Although he worked at the enterprise for 44 years. And God forbid, an accident due to overwork and who will be responsible?

My employer generally believes that an irregular working day means 12 hours of work every day instead of 8 hours. Daily! If you worked at least 10 hours, then you already have a claim. That is, for the employer, this hole in the law in the form of a lack of a clear understanding of exactly how many hours is a loophole not to hire and not pay for another employee, whom the employer would be forced to hire if the Labor Code of the Russian Federation had an order with this norm. In fact, it turns out that one employee works for two, but receives only three days of vacation. Moreover, as a rule, people receive vacation only on paper.

Until 2009, for irregular hours I was given time off or compensated with money, and I could also take additional days for vacation - I always had a choice. Since 2009, the manager has changed and it began: I work according to an irregular schedule (order), there is not a word at all about the deputy in the collective agreement. I approached management and they shrugged their shoulders, saying they didn’t know anything. And in addition, the guardian of a minor child. Should I go to the prosecutor's office or somewhere else? And what documents should I provide?

Yes, the fact of the matter is that it will be difficult to prove the employer’s abuse of “irregular hours”. In the TC everything is very vaguely described in this part. An employee is involved sporadically - how many times a week or a month and for how long - for an hour - for two or for 5 hours??? Under what circumstances employees can be involved is also not specified. I also encountered overwork in the organization. In our report card, actual processing is not noted at all. I worked 10-11 hours, they still give me 8.

It would seem much simpler, there is a law, but unfortunately the basis has not been thought out, apparently on purpose. Thus, the employer benefits for himself, why hire additional employees when you can get by with the staff you have by adding 3 days to your vacation, but what a waste of time. I believe that if the additional vacation is 3 days, then the overtime should not exceed (8 hours * 3 days = 24 hours / 1.5 = 16 hours, the calculation is based on the principle of calculating payment for work performed on a scheduled basis) 16 hours per year. in this case, human rights in payment will not be infringed.

It’s a pity that it depends on the employer how to compensate for irregular days. I think that many additional vacation days would be replaced with monetary compensation, although the employer often sends people on vacation.

The provision of additional leave for irregular working hours at our enterprise is stipulated in the collective agreement and no disputes or problems arise.

An irregular working day was always interpreted as the need for a responsible employee to perform a certain amount of work assigned to him job description, and not the manager’s right to involve an employee in overtime work, it is not clear for what reasons. That is, if you are the Deputy Director for Economic Affairs, then all issues related to this position must be completed. This kind of employee, as a rule, determines the time of its completion, despite the established routine at the enterprise.

With the advent of this article in the Labor Code, many managers have their hands freed, and are now squeezing workers to the fullest. And I didn’t even always manage to take my allotted vacation, and without additional allowances.

I didn’t even know about the three days before vacation. The boss always insists that you have irregular working hours if you need to stay at the end of the working day. And he forgets to add three days to his vacation. Now I will remind him of this when I get ready to go on vacation.

Unfortunately, I also encountered the problem of irregular working hours. Went to work with maternity leave in advance (at the request of management), the child was 2 years old at that time. Requests to stay, to linger, began almost immediately; I didn’t know how to deal with them. As a result, I had to quit, because the child will not be in kindergarten until 9 pm, and no one pays me for these overtime hours. Therefore, everyone has their own choice - to work like a horse, or still leave time for life.

In Russia, such concepts as irregular working hours and overtime work are distinguished only in large organizations. In small and medium-sized businesses such concepts do not exist at all. At first it is a request to go out after hours/stay late, and then it becomes a responsibility. Workers will be indignant, but not a single one will contact the labor inspectorate. And as they say: if you don’t like it, quit. So they remain silent and “plow.”

If employees of a particular organization perform work that does not fit into the daily 8-hour working day, then they are provided with additional vacation days for irregular working days (NWD). Working with n.r.d. provides compensation options such as:

surcharge;
increased official salary;
additional leave;
a combination of several options.

Surcharge
If the employer ordered the work to be performed for at least two hours overtime, then he is obliged to pay the subordinate for the first 2 hours at least one and a half times the amount, and then double the amount or more. Those. If an employee is entitled to additional leave, overtime payment is required.

Example
The employee works overtime from 17:00 to 24:00. Paid hours are from 17:00 to 19:00 - at one and a half times the rate, from 19:00 to 24:00 - at double rates. The employee is also entitled to 20% of the hourly wage rate for night work.

Increased official salary

Article 147 of the Labor Code of the Russian Federation regulates issues of remuneration for persons working in hazardous areas. These citizens receive increased payment.

The minimum increase in wages for employees engaged in work with harmful and (or) dangerous working conditions is 4% of the tariff rate (salary) established for various types of work with normal conditions labor.

Specific amounts of wage increases are established by the employer, taking into account the opinion of the representative body of employees in the manner established by Article 372 of the Labor Code of the Russian Federation for the adoption of local regulations, or by a collective agreement or employment contract.

Additional leave

The procedure for providing leave and compensation is regulated by Article 126 of the Labor Code of the Russian Federation. In this case, the employee must write a written statement requesting the compensation provided. If an employee does not want to go on vacation, he can take a cash payment in return. However, the employer also has its own rights, namely, refusal to provide Money and provision of additional leave in kind (14 days or more). This is a feature of irregular working hours.

Recalling from vacation persons under 18 years of age and pregnant women is prohibited by law (Article 125 of the Labor Code of the Russian Federation). The standard also applies to workers working in hazardous areas. In all cases, the employer may decide to increase the salaries of persons working outside of normal hours. For example, service drivers passenger cars Those who are entitled to additional leave receive an additional payment of 25% of the tariff rate.
Piece workers - double piece rates.
Employees working at daily and hourly rates - at least double the daily or hourly rate.
Persons working on the basis of an official salary receive amounts of at least a single daily or hourly rate.
Creative workers, media workers, representatives of culture - the remuneration of these persons is established in accordance with the collective/employment agreement and other regulations.

Realities modern business are such that employees often have to stay late at work, come early, and work without lunch. In such situations, employers are in no hurry to pay for overtime, justifying it by the fact that employees have irregular days. Does working irregular hours really allow an employer to save on overtime payments?

Introductory information

The Labor Code sets clear boundaries for the working hours during which employees must perform their duties. As a rule, this is 40 working hours per week, which, with a five-day working week, gives 8 working hours per day. You can make sure that an employee works outside of this time in two ways - by involving him in overtime work, or by introducing irregular working hours. The first method entails mandatory payment for each hour of overtime, and total such hours are limited to 120 per year and four during two consecutive working days (Article 99 of the Labor Code of the Russian Federation). But no such restrictions have been established regarding irregular working hours, which makes it very attractive for the employer.

What is an irregular day?

Before moving directly to the consideration of issues arising in connection with irregular working hours, we need to dwell on this concept itself. According to Article 101 Labor Code Irregular working hours mean a special work schedule, according to which individual workers may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the established working hours.

Simply put, employees whose job responsibilities are such that they cannot always be performed during working hours can work in irregular working hours. Usually, we're talking about about employees whose work is related to customer service (after all, you can’t kick out a customer who arrived 10 minutes before the end of the working day). Or about employees representing the interests of the company in other bodies or organizations (courts, tax authorities, etc.), whose work schedule may not coincide with the employee’s work schedule.

But these are just examples. The Labor Code itself does not establish any restrictions on the number of employees who can be subject to irregular working hours (although there are still some exceptions, and we will discuss them below). Therefore, formally, both a cleaner and a manager of the highest rank can work on irregular hours.

What does an irregular day schedule give?

The first and most obvious advantage of the irregular day regime follows from its definition, which we gave above - employees can be assigned to perform work not only during working hours, but also outside it. But there are other advantages.

Thus, the introduction of an irregular day does not relieve the employee of the obligation to come to work on time, nor does it give the right to leave early. In addition, an irregular working day makes it possible to involve an employee in additional work at any time - both before the start of the working day and after it ends. This is confirmed by Rostrud in letter dated 06/07/08 No. 1316-6-1. The third advantage of an irregular day is that you do not need to obtain his written consent each time to engage an employee to work outside of official working hours. Moreover, the employee does not have the right to refuse processing.

Finally, this method of ensuring the presence of employees at work is quite simple to design.

How to enter an irregular day

Article 101 of the Labor Code establishes the following algorithm for introducing an irregular working day regime in an organization.

First, you should draw up and approve a list of positions for which irregular working hours are established. However, you need to remember some restrictions. Thus, it is impossible to include in the list of workers who, by law, have a reduced working day (disabled people, minors, workers studying at universities, etc.). It will not be possible to establish an irregular day for employees with whom there was an agreement on a part-time working day, fixed in the employment contract. But a part-time work week (i.e., a regime when an employee works not five days a week, but, for example, two or three) is not an obstacle to irregular working hours.

After this document is drawn up, all employees whose positions are indicated in it must be familiarized with the list for signature. Accordingly, if an employee is hired for such a position, then before signing the employment contract he must be familiarized with the list, which is recorded by his signature indicating the date and time of familiarization.

The next document in which you need to fix the condition about irregular working hours is an employment contract with the employee. Moreover, this must be done without fail, since an operating mode different from that generally accepted in the organization is prerequisite employment contract (Article 57 of the Labor Code of the Russian Federation). Accordingly, if a similar work regime is introduced for existing employees, then an additional agreement to the employment contract will be required. This means that it is possible to introduce an irregular working day in an organization only with the consent of the employee. But in the future, as we have already mentioned, it is not necessary to obtain consent for each case of processing.

This completes the formalization of the possibility of involving an employee in work outside the working day.

How to issue an order

If we read Article 101 of the Labor Code of the Russian Federation carefully, we will see that an employee should not work more than expected every day, but only by order of the employer. At the same time, the Code does not specify in any way how such an order should be drawn up. There is no unified form for this case. It turns out that the legislation allows for oral orders.

However, in our opinion, an oral order can only be used if there is another document where the processing will be recorded. The amount of time worked by each employee is recorded in the Time Sheet (form No. T-12 or T-13, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1). But, according to the procedure for filling out these documents, approved by this resolution of the State Statistics Committee, if an employee has an irregular day, then work in excess of the established working hours is not reflected in the accounting sheet.

At the same time, part 4 of Article 91 of the Labor Code imposes an unconditional obligation on the employer to keep records of the time actually worked by each employee. Therefore, whatever one may say, the organization will need to issue a document recording the processing time. In principle, this could be a statement similar to a Time Sheet. And the presence of such a document, in our opinion, may well replace a written order from the employer about the need to work outside working hours.

At the same time, we would like to warn employers against abusing the irregular working hours. After all, Article 101 of the Labor Code states that employees can be involved in extracurricular work only occasionally. Therefore, if, during an inspection, the labor inspectorate establishes that such work was of a permanent nature, the employer may be required to pay for this work as overtime, and even fined for violation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Summarize. Irregular working hours are documented with the following documents:

— list of positions approved by the head of the organization;

— an employment contract indicating irregular working hours;

— a record of the actual work of employees during irregular working hours.

Payment for irregular days

Let us now turn to the issues of compensation for employees working outside of normal working hours. Unlike overtime work, which is compensated with money, working irregular working hours “threatens” the employee with additional days of paid leave. The duration of this leave is determined by the employer independently, but cannot be less than three calendar days (Article 119 of the Labor Code of the Russian Federation). Please note that this leave is available to all employees who hold positions included in the relevant list. It does not matter whether they were actually involved in work outside working hours or not.

Since the legislation does not define the criteria for episodic involvement in work within an irregular day and the maximum number of overtime hours, in practice disputes very often arise between the employee and the employer. Let's try to figure it out.

Another feature of this work regime is the employer’s ability to engage an employee both before and after the end of a shift without obtaining his consent to work beyond the norm (Letter of Rostrud dated 06/07/2008 No. 1316-6-1). This position is confirmed by the recently issued Letter of the Ministry of Labor dated October 29, 2018 No. 14-2/OOG-8616. In the letter, officials remind that the introduction of an irregular working day should not change the established working hours, and overtime should not lead to the transformation of an irregular working day into an extended one.

If there is no provision in the employee’s employment contract regarding his working hours being irregular, but he is occasionally involved in work outside of his work norm, such an employee may also qualify for additional days off. However, he may choose compensation in money. In this case, you need to be guided by the new edition Art. 119 TK— the rule is excluded from it that if the employer does not provide additional leave for using an employee on an irregular day, overtime in excess of the standard working hours with the written consent of the employee is compensated as. Thus, the legislator does not recognize overtime during irregular hours as overtime work, which must be compensated by additional pay and has hourly restrictions.

At the same time, employees whose working hours are not standardized are subject to the rules regarding the beginning and end of the working day, providing them with weekly days off and rest on holidays. This means that it is possible to involve an employee in additional work on weekends and holidays only in compliance with the rules Art. 113 And Art. 153 Labor Code of the Russian Federation. This is also recalled in Letter of the Ministry of Labor No. 14-2/OOG-8616.

Night work is also a deviation from the norm, therefore it must be properly documented and paid at an increased rate established by local regulations or ( Art. 154 Labor Code of the Russian Federation).

Who gets an irregular day?

The legislation does not limit the employer in the choice of positions for which irregular working hours can be established. However, the determination of such a list must be approached taking into account the nature of the work and not include in it all positions available at the enterprise. This may raise questions from inspectors.

The list of positions can be drawn up in the form of a separate local regulatory act or included in a collective agreement or internal labor regulations. It must also be agreed upon with the employees’ representative body (if there is one).

Sample order for approval of the list of positions

Documentation of conditions

When hiring an employee, it is necessary to familiarize him with the collective agreement, internal labor regulations and other local regulations in force in the organization and relating to his labor function. After this, an employment contract is concluded with the employee, which includes a condition for working on irregular working hours. By signing it, the employee agrees with the nature of the work, which involves overtime.

Sample employment contract

This condition must also be indicated in the employment order.

Sample order

It is worth noting that if an employment contract has been concluded with an employee for a position that is not in the approved list of professions with irregular working hours, then this condition is unlawful. Consequently, the employee has the right to refuse to work beyond the working hours and on this basis he cannot be brought to disciplinary liability.

If an employee is transferred to a position for which irregular working hours are established, then the employer should:

familiarize him with local regulations containing a list of positions with irregular working hours;
conclude an additional agreement to the employment contract to include conditions for irregular working hours and compensation for this type of work;
issue an appropriate order (in free form).

If the employee’s condition on irregular working hours is excluded, then the employer must enter into an additional agreement with him, which will contain a different work schedule, and issue a corresponding order.

Registration of attraction to work beyond the norm

The procedure for attracting workers to work beyond the norm during irregular working hours is not regulated. In practice, recruitment is often carried out on the basis of a verbal order from the boss or on the initiative of the employee himself who did not have time to complete the task. It seems that in order to guarantee the rights of employees, it is advisable for them to require a written order from the employer to engage in work beyond the norm, otherwise it will be difficult to prove the existence of such an expression of the employer’s will.

Work accounting

The working hours of an employee with irregular hours are recorded without taking into account the time worked in excess of the norm. This is due to the fact that he is not produced financial compensation, as in the case of overtime work, and additional annual leave is provided. But since Article 91 of the Labor Code of the Russian Federation It is determined that the employer is obliged to keep track of the actual hours worked by each employee; the employer can keep such records in a separate independently developed document, for example, a log book or a separate time sheet. This may come in handy if an emergency occurs while performing work outside of normal working hours.

Part-time and part-time work

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

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

Also, the law does not prohibit the establishment of irregular days. But there are some peculiarities here:

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