According to the Labor Code Russian Federation any employed citizen has the right to a guaranteed annual paid vacation. Its duration is 28 or more days. Under certain circumstances, it is possible to increase its duration. In case of non-use of additional days of rest, the employee can issue material compensation. The conditions for its provision are regulated by federal legislative acts.
All employed citizens are entitled to annual leave, but not every employee uses it fully. Paid vacation days, the number of which exceeds 28, are subject to transfer or financial compensation - at the choice of the employee. The Labor Code of the Russian Federation provides for the possibility of receiving cash payments only in return for additional days off.
In case of dismissal of an employee, in the calculation, on the last working day, the employer is obliged to pay compensation to him in proportion to the period of time worked in the organization. Payment for the remaining days from the rest of the day in cash is carried out at the written request of the employee. The procedure for paying compensation for unused vacation governed by federal regulations and laws.
There are restrictions on the circle of persons entitled to replace the unused vacation period with cash payments. Article 126 Labor Code imposes a ban on the provision of compensation for part of the vacation period:
If an employee wrote an application for a full annual mandatory rest, but due to certain circumstances it was not possible to fully use it, days arise in return for which you can receive a monetary compensation. The reasons for this situation may be:
Payment of compensation for unused vacation is made at the moments strictly defined by law. Most of the nuances are regulated by the Labor Code of the Russian Federation:
The right of representatives of certain professions to receive monetary compensation in return for unused rest is established by part IV of the Labor Code of the Russian Federation and ministerial letters and orders. The procedure for calculating the length of service, calculating the number of days due for compensation and other nuances are regulated by the following regulatory legal acts:
In most cases, the entire remaining number of days of the required annual rest is subject to recalculation and payment upon dismissal. There are situations when continuing labor activity In the organisation. Rarity of occurrence last version due to the fact that the Labor Code prohibits compensating the majority of the working population (with the exception of certain professions, for example, doctors, teachers, etc.) for the main 28 days, and employers prefer to transfer the rest to the next billing period.
The employee is entitled to the provision of annual paid rest, lasting 28 calendar days, at least once every 24 months. Failure to provide such is a violation of the law, entails an administrative penalty for the employer. Having used half of the 56 days set for 2 years worked, the remainder is reimbursed in monetary form it is impossible, because All these are components of the obligatory main part. Replacement with money is possible only in case of termination of the employment contract. These rules apply to essential workers, internal, external part-timers.
The right to use annual paid leave arises from the employee after six months of work. Upon dismissal, all due unused vacation days are subject to compensation, regardless of the amount of time worked in the organization. For example, an employer who has worked for 4 months must reimburse the period of mandatory annual rest in proportion to this period. For an accurate calculation, a special formula is used.
When the employee continues his labor activity at the enterprise, the vacation days not used by him for the billing year, with his consent, are transferred to next year or are paid. Article 115 of the Labor Code of the Russian Federation prohibits compensation for the main annual paid leave. If the employee did not take it off completely, then he can reimburse the rest, even if he does not quit, but only the amount exceeding the prescribed 28 calendar days is payable.
Extra days are extra days, provided by law, local regulations of the enterprise, the rest of the days off for the previous billing year, etc. Article 116 of the Labor Code of the Russian Federation provides for an extended duration of annual rest, in return for which compensation for unused leave without dismissal is possible, for the following categories of employees:
An employee who has worked for a certain period of time and did not use the right to annual paid leave, upon dismissal, is obliged to compensate these days in monetary terms. Reason for termination of employment contract own will, expiration, violation of labor discipline, etc. - does not affect the right to receive payment, it is due to everyone. Compensation for unused vacation upon dismissal is calculated:
In some cases, the employee is entitled to reimbursement of unused vacation days for the full 12 months, even if the period worked is less. This happens when an employee has worked at the enterprise for a period exceeding 11 months - 1 year and 11 months, 2 years 11 months. etc. or has an experience of 5.5 months and was fired for the following reasons:
Rest in the amount of 28 calendar days is due to employees not for a calendar year starting in January, but for a calculated year, calculated from the date of employment. For example, an employee was employed on 02/04/2016, the accounting year for him will be 02/04/2016 - 02/03/2017 (in the absence of periods that shift him). The right to use up to 14 calendar days (if agreed with the authorities - more) arises from the employee after 6 months continuous experience, i.e. in the above example - 08/04/2016, and the full one can be used after 11 months. – 01/04/2017
In advance, it is possible to provide annual rest to the following categories of employees:
To determine the number of unused days for the purpose of compensation, it is necessary to calculate the vacation period. Vacation periods are excluded from the calculation:
For example, an employee employed on 02/04/2016 used 12 days of the main day and 28 days at his own expense (08/01 - 09/01/28), then upon dismissal on 10/01/2016, he is entitled to compensation for the unused period 02/04/08/01 and 08/15/10. To round off the months that make up the vacation period, the arithmetic principle is used: 15 or more days of the last month are rounded up, a shorter duration is rounded down.
The employee can calculate the due amount for unspent rest on their own using an online calculator, but it is difficult, because. you need to know the total annual income, the number of non-vacation days and the vacation period. The payment of compensation for unused vacation is calculated by the accountants of enterprises according to the formula:
The amount of rest due for the worked period can be calculated in two ways:
The average daily earnings are calculated according to the formula that takes into account the salary for the year:
In the event that one or several months were not fully worked out, the calculation is made according to a completely different formula:
For seasonal workers and persons who have entered into a fixed-term employment contract for up to 2 months, the number of days of paid leave due is indicated in Art. 291 of the Labor Code of the Russian Federation and is 2 days for one worked month. The number of vacation days due to compensation for some other categories of employees is indicated in Part 4 of the Labor Code.
In order to receive a monetary refund of unused days of paid rest, you must contact the accounting department at the place of work with a written application. On its basis, an order is issued for the payment of compensation, issued to the employee against signature, appropriate entries are made in personnel documents- personal card, vacation schedule.
The application form for the provision of payment for unused vacation is not approved at the state level. The employee in any form draws up a document indicating the main necessary details:
Having accepted a statement from the employee, the manager approves it, issues an order for the accounting department and the personnel department. If the director is directly responsible for maintaining personnel records, he is recommended to check the data indicated in the employee’s application in order to avoid financial errors in the calculation. There is no unified form of the order, it is created according to the standard norms of the organization, indicating the information necessary for this case - the name of the employee, the number of unused days, etc.
Sample variant (sample document design):
Society with limited liability"Spring"
Vesna LLC
No. 137-ls dated 01.10.2017
Moscow city
About replacement part annual leave monetary compensation
In accordance with Art. 126 Labor Code of the Russian Federation
I ORDER:
Senior technologist Makarova I.A. replace part of the monetary compensation additional leave for the period 03/12/2016 to 03/11/2017 in the amount of 2 (two) calendar days.
Reason: personal statement of Makarova I.A. from 29.09.2017
Director of Vesna LLC (signature) Kryuchkov D.S.
Familiarized with the order:
Senior technologist (signature) Makarova I.A.
Cash compensation for unused vacation without dismissal is paid on the date of payroll for the current month. Upon termination of the employment contract, the transfer is made on the last working day or on the day the employee submits claims for its calculation. Failure to comply with the terms of payment or evasion of the fulfillment of a legal obligation related to the payment of unused days, entails the imposition of sanctions on the employer, established by:
The taxation of compensation for unused vacation upon dismissal is regulated by the Tax Code of the Russian Federation. Article 226 obliges the employer to transfer personal income tax no later than one business day following the date of dismissal of the employee. In any situation - upon dismissal or upon continuation of employment - mandatory insurance premiums in the FSS and the PFR (FZ No. 212, clause 2, part 1, article 9).
In the accounting documents of an organization (small business) that does not have a vacation pay fund, compensation for unused days is reflected as an expense item (Article 225 of the Tax Code of the Russian Federation), therefore, it affects the payment of income tax by organizations that apply the “income minus expenses” taxation system and does not affect on those who use only income as an object of taxation.
The delay in the timing of the calculation of compensation for unused days or its absence is a reason for applying to labor inspection and court. The Code of Administrative Offenses for the employer provides for fines in the amount of:
For repetition of similar violations, the punishment is increased:
By filing a lawsuit against the employer, the employee has the right to claim unpaid compensation, underpayment, compensation for non-pecuniary damage, expenses for legal services related to litigation. An employee has the right to file a claim with the appropriate authorities to recover an additional payment from the employer before the expiration of 3 months from the date of dismissal.
Vacation compensation with money without taking another vacation can be paid both upon dismissal and when the employee works tirelessly. However, if in the first case the payment of vacation pay is your direct obligation, then in the second case it is your right, which you can use or neglect. This issue is regulated by Art. 126 of the Labor Code of the Russian Federation and describes in detail cases of compensation for unrealized vacation for workaholics. If your employee does not want to take a month of well-deserved rest and offers to pay him money instead of a vacation, then read our article on how to properly arrange a replacement.
Those who are not entitled to receive money in lieu of vacation include:
Pregnant woman;
An employee under the age of 18;
An employee exposed to radiation due to the disaster at the Chernobyl nuclear power plant;
If your employee does not fall into any of these categories, then you can safely replace the vacation with monetary compensation.
IMPORTANT!
According to Art. 126 and 127 of the Labor Code of the Russian Federation, only part of the annual paid leave can be replaced with monetary compensation. study leave does not fall under this category, it is considered an additional targeted leave related to training (Articles 173 - 176 of the Labor Code of the Russian Federation).
Let us make a reservation right away that our legislation does not set a limit on the number of days that can be replaced by compensation, but you also have no right to replace the entire annual leave of an employee with money. According to Part 1 of Article 126 of the Labor Code of the Russian Federation, it is allowed to pay compensation only for that part of the vacation that exceeds 28 calendar days.
It turns out that your employees can only count on the replacement of monetary compensation with an extended basic or additional vacation. In the table below, we have listed the categories of employees who, by law, are entitled to extended basic and additional holidays.
BY THE WAY!
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|
Grounds for granting leave |
Minimum vacation time |
|
|
Extended basic leave |
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|
Workers under 18 |
Art. 267 of the Labor Code of the Russian Federation |
31 calendar days |
|
Working disabled (regardless of disability group) |
Art. 23 federal law dated 11/24/95 No. 181FZ |
30 calendar days |
|
Additional leave |
||
|
Employees engaged in work with harmful and (or) hazardous conditions labor |
Art. 117 Labor Code of the Russian Federation |
7 calendar days |
|
Employees with special character work |
Art. 118 Labor Code of the Russian Federation |
The term is determined by the decrees of the Government of the Russian Federation |
|
Workers with irregular working hours |
Art. 119 Labor Code of the Russian Federation |
3 calendar days |
|
Employees working in the Far North (including part-time jobs) |
Art. 321 of the Labor Code of the Russian Federation |
24 calendar days (16 calendar days - for areas equated to the regions of the Far North) |
|
Workers exposed to radiation due to nuclear testing at the Semipalatinsk test site |
P. 15 Art. 2 of the Federal Law No. 2-FZ dated 10.01.2002 |
14 calendar days |
|
Workers exposed to radiation as a result of the Chernobyl disaster |
P. 5 Art. 14 Law of the Russian Federation of May 15, 1991 No. 1244-1 |
14 calendar days |
Even if your employees do not fall under the specified list, according to Part 2 of Art. 116 of the Labor Code of the Russian Federation, you can independently establish additional leave for them. You need to prescribe the procedure and conditions for granting such leave in a collective agreement or other local regulatory document.
IMPORTANT!
Vacation days exceeding 28 calendar days of the main vacation are subject to monetary replacement. every year, in other words, if your employee this year did not take part of the vacation from 28 calendar days and transferred them to the next one, then he may not count on money instead of vacation.
To make it easier, let's look at an example:
Grigorieva S.Yu. has been working at Krasotka LLC since May 14, 2012. She is entitled to paid leave of 28 calendar days for each working year. In the first working year (from 05/14/2012 to 05/13/2013) she took a vacation of 21 calendar days. In the second working year (from 05/14/2013 to 05/13/2014) - 26 days. In two working years, out of 56 calendar days (28 calendar days + 28 calendar days), she used only 47. Is it possible to replace the unused 9 days with monetary compensation?
No, it doesn't. Since the duration of her annual paid leave is only 28 calendar days, and only days exceeding the specified limit for each year of work are subject to replacement.
Before applying for a replacement vacation with monetary compensation, you should:
Because the make a change of money instead of a vacation is possible only at the request of the employee, then he should write statement in the name of the head of the salon. The document can be written in any form, since the established form is not provided for by law. We provide a sample application below.
to CEO
LLC "OOO"
Statement
In accordance with Article 126 of the Labor Code of the Russian Federation, I ask you to replace with monetary compensation part of the additional paid leave for the period from September 1, 2013 to August 31, 2014 in the amount of 4 calendar days.
Cosmetologist ___________
08/20/2014 signature
So, if you agree to give the employee money instead of vacation, then now it’s the turn for by order. Again, a unified form is not provided. You can make it in the same way as a statement, in a derivative form. You need to know the full name and position of the employee, the number of days of the billing period and vacation to be replaced by monetary compensation, the details of the employee's application. Familiarize the employee with the order against signature. We have attached a sample for your convenience.
Limited Liability Company "LLC"
Order
27. 09.2014 No. 172-ls
On the replacement of part of the vacation with monetary compensation
In accordance with article 126 of the Labor Code of the Russian Federation
I ORDER:
Beautician _________ to replace with official compensation a part of the additional paid leave granted for the period of work from September 1, 2013 to August 31, 2014, exceeding 28 calendar days, in the amount of 4 calendar days.
Reason: statement _________ dated 08/20/2014
Director signature _____________
Acquainted with the order: signature ____________
beautician
Information on the replacement of part of the paid leave with monetary compensation must be reflected in the employee's personal card. Information is entered in section VIII "Vacation".
Employee's personal card(fragment)
|
Type of leave (annual, educational, unpaid, etc.) |
Work period |
Number of calendar days of vacation |
Base |
|||
|
endings |
||||||
|
Annual basic paid |
Order dated 07/06/2013 No. 18 |
|||||
|
Additional paid |
Leave replacement |
Cash compensation |
Order dated 27.09. 2014 No. 172-ls |
|||
You should also reflect this information in the vacation schedule: in paragraph 10 "Note", indicate the details of the order and the number of vacation days to be replaced. The entry may be of the following nature: “Part of the additional paid leave in the amount of 4 (four) calendar days was replaced by monetary compensation on the basis of order No. 172-ls dated September 27, 2014.”
To calculate the amount of monetary compensation, look at the average daily earnings of a specialist. This earnings is multiplied by the number of days replaced by compensation. As for daily earnings, in this case it is calculated according to the rules for calculating vacation pay (Article 139 of the Labor Code of the Russian Federation and 10 of the Regulations on the Peculiarities of the Procedure for Calculating Average Wages of Decree of the Government of the Russian Federation of December 24, 2007 No. 922).
If the employee has worked in full for the billing period, the actual amount of the employee's salary for this billing period is divided by 12 and by 29.3 (the average monthly number of calendar days).
IMPORTANT!
In the event that a vacation not exceeding 28 days is replaced with monetary compensation, you may be held administratively liable for violation labor law. The head of the salon faces a fine in the amount of 1,000 to 5,000 rubles, and a fine in the amount of 30,000 to 50,000 rubles may be imposed on the company. or suspend activities for up to 90 days.
Difficulties will arise if one or more months of the billing period have not been fully worked out. In this case, the number of calendar days in fully worked calendar months is first determined:
KDMP \u003d KMP × 29.3
where KDMP- the number of calendar days in fully worked months of the billing period;
ILC- the number of fully worked months;
29,3 - average monthly number of calendar days.
KDMN = 29.3: KKDMN × CODE,
where KDMN- the number of calendar days in a month that is not fully worked out;
KKDMN- the number of calendar days of the month that is not fully worked out;
THE CODE- the number of calendar days worked in a given month.
If there are several months that the employee has not fully worked, then the number of calendar days is determined for each of them and the results are summarized.
Let's see how this happens with an example
An employee of Long Spit LLC L.B. Serdyukova according to employment contract an additional vacation in the amount of 4 calendar days is due. She turned to the employer with a statement about replacing this part of the vacation with monetary compensation. The settlement period is from August 1, 2013 to July 31, 2014. From April 1 to April 28, 2014 L.B. Serdyukova was in next vacation(28 calendar days). And in January 2014, an employee was ill for 10 days. The remaining months of the billing period are fully worked out.
Over the past 12 calendar months, payments in favor of the employee amounted to 420,500 rubles, including vacation pay - 29,800 rubles. and payments on a disability certificate - 9,200 rubles. Calculate the amount of compensation that is due to the employee.
First, we determine the number of calendar days in fully worked months. It is 234 days. (8 months × 29.3 days).
If both the employer and the employee of the company agree to this, then the vacation can be postponed, but this is done only as a last resort, if the employee's departure from work will negatively affect the company's activities. It is worth noting that the transferred days the employee must use during the next year.
The authorities should not refuse to provide their employees with paid leave for 2 consecutive years.
But if the enterprise employs minors and those whose work takes place in unhealthy conditions, then such people should rest annually.
In this way, certain restrictions are set for the employer regarding the provision of vacations for staff. But in some cases, workers accumulate unused time off for previous holidays. Then a person can count on their provision or on receiving material compensation. Let's take a closer look at when and under what conditions this is possible.
Material compensation should be paid to employees only if their vacations are extended, that is, their duration is more than 28 days (Article 126 of the Labor Code of the Russian Federation).
This group includes:
For workers who fall into one of the above categories, the head of the enterprise can pay monetary compensation at the expense of vacation days that they did not use. On the other hand, he is not required to do so. The head of the enterprise can also give the employee days off, but refuse to pay financial compensation.
To receive financial compensation, you must do the following:
Let's take a closer look at how this procedure goes.
Replacement of unused vacation days with money can be carried out only at the request of the employee.
He must state the request in his statement, which is drawn up in the name of the head of the enterprise. On the this moment there is no fixed form for it, so an employee can issue a document in a free form.
The head of the enterprise, having received the application, will have to issue an order if he agrees to pay the employee monetary compensation. The order also does not have a special form, so it is compiled in an arbitrary order. The document must contain:
After the order is issued, the information that the unused period will be replaced by a cash payment must be reflected in the worker's personal card in the "Vacation" section.
In addition, it is imperative to make changes to the data relating to the replacement of days of rest with a sum of money, and in the vacation column. The entry must be made in the "Note" column. Here you must specify how many days you want to replace, as well as write down the details of the order.
Remember! If an employee wants to receive a cash payment due to the days that he could not take off, then the head of the enterprise may well refuse his request.
If the employer expresses a desire to replace the unused vacation period with a material payment, then the employee is not obliged to agree to this.
The exact number of days that is allowed to be changed to a cash payment is not established by the legislation of the Russian Federation. However, it is prohibited by law to completely replace the entire vacation with a cash payment.
The head of the company can replace only part of the vacation with material compensation exceeding 28 days (part 1 of article 126 of the Labor Code of the Russian Federation). That is, only those persons for whom it is extended or at the enterprise they are entitled to additional leave can count on payment.
In enterprises, situations often arise when a person cannot leave his workplace and take a scheduled paid vacation. Under such circumstances, employees may be offered to replace unused vacation days with material compensation.
However, this is not possible in every case. This is done only at the request of the employee. In its turn the employer has no right to force a person to agree to such conditions, and he, in turn, may refuse the employee such a request.
Each employed citizen has the right to receive an annual paid leave of 28 calendar days if he has worked at the enterprise for more than six months. But sometimes situations arise when an employee can also receive compensation for unused vacation in the form of material remuneration.
From the article below you will learn:
An employee of a company can receive compensation for unused annual paid leave in two cases: if he leaves or total vacation exceeds 28 calendar days. The second case is observed when the employee did not have time to take a vacation for some reason, and he was added to 28 calendar days vacation for the next reporting period.
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If the employer and the personnel department have no objections to the issuance of compensation, the immediate supervisor of the enterprise issues an order in free form that a certain employee is allowed to receive a financial payment for unused vacation.
As in the case of the application, the order for compensation for unused vacation is issued in free form. This document must, without fail, contain the following information:
The document is signed by the head and transferred for execution to the personnel service and to the accounting department, where the process of settlement with the employee is already taking place.
It should be remembered that the employee must also be familiar with this document. A person is obliged to put his signature in the order itself or in the annex issued to it, and if the employee does not document this consent, then the points written in the form will become invalid.
As stated above, material payment as compensation for vacation is due only in a few cases. If an employee has unused rest days, but their number does not exceed 28, then the employee is not entitled to receive compensation for vacation. Also, no payment is made if the end of the reporting year has come and the employed citizen does not plan to quit. The remaining days simply roll over to the next year and will be added to the accumulated vacation in the future.
Vacation compensation is not an obligation, but a right of the employer. For illegal payment of financial resources to an employee as a material incentive for unused vacation on entity may be subject to a fine in the amount of 30,000 rubles, and CEO institutions - from 1000 to 5000 rubles.
In the first paragraph of the article, it was said that every employed citizen has the right to leave. Accordingly, if a citizen has several days of unused vacation or their total number is more than 28, then he can receive compensation. This right applies to absolutely all categories of officially employed citizens. Remember that improper registration of an employee for work is a direct violation of the requirements of the law and entails administrative liability.
