Ivan Shklovets, Deputy Head of Rostrud, Answers Hot Questions About Workers' Rights

ONE PART OF HOLIDAY - NOT LESS THAN 14 DAYS

“After the vacation convention was signed this summer, the personnel department told us that the accumulated vacations should be taken off as soon as possible, and from next year there should be no unused vacation days at all!” - says Ekaterina, a reader of KP, and asks for an exact answer: what will happen to the holidays accumulated earlier and will unused rest days not burn out?

I want to immediately reassure Ekaterina and everyone who is in labor relations: ratification of the International Holiday Convention has absolutely no adverse effects on employees - the first thing pleases the deputy head Federal Service on labor and employment (Rostrud) Ivan Shklovets and competently explains: - All accumulated vacations are preserved and in no case burn out.

At the same time, the convention, like the Labor Code of Russia, determines the periods during which accumulated holidays must be used. This is, first of all, a strict requirement for employers: they are obliged to ensure that employees rest at least as much as the prescribed norm, and that if they do not use their vacation in the current year, they must certainly take it within 12 months after the end of the working year for which it was supposed.

In general, from January 2011, the controlling and supervisory body - the State Labor Inspectorate - will closely monitor that organizations send their employees on a good rest - 28 days during the year, and the accumulation of vacations has been minimized: strictly according to the law, this allowed only in case of production necessity (when the employee's leave on vacation "may adversely affect the normal course of the organization's work").

By the way, for those who like to save holidays and take 4 - 5 times a year for 5 days (plus days off - a week comes out), you should keep in mind that now employers will strictly observe the rule: at least one part of the vacation must be at least fourteen calendar days.

"I WANT EVERYTHING AT ONCE"

Igor had already accumulated 60 days of vacation, and he wondered if, in the light of the latest trends, it was possible to take and leave to rest at once for all two months. “I would like to go to Goa from the New Year until the end of winter,” the worker dreamed. What will Rostrud say?

Of course, it is better to resolve such issues in agreement with the employer, Ivan Shklovets advises.

And the following argument will help you achieve such agreement.

The employer himself should be interested in the fact that the employees quickly take off all the accumulated holidays, - notes the deputy head of Rostrud. - Because the presence of unused vacation days means that the employer did not provide its employees with the legal vacation days in a timely manner and in full. And this is a violation of labor legislation and in the end may become a reason for bringing to administrative responsibility.

Of course, in reality, mortgage your own employer labor inspectorate you are unlikely to, but we hope you can build your conversation more weightily.

WHEN YOU CAN GET COMPENSATION WITHOUT LEAVING

“Is it really the only case when you can get compensation for unused vacation days is dismissal? Maybe there are still some chances? Alexey asks hopefully.

There is such a case! - confirms Ivan Shklovets. - We are talking about the so-called additional paid holidays, which, according to the law, are provided to some categories of workers in excess of the standard 28-day vacation.

One of the most common situations in practice is an additional three-day vacation, which, according to Labor Code must be provided annually to employees with irregular working hours.

Please note: we are talking about those cases when such an irregular day is legally fixed, that is, officially provided for by your employment contract. But those who have to stay up late at work, in fact, without any formalities, alas, cannot count on a vacation increase.

By the way, for many, it may turn out to be a real revelation that, under the current Labor Code, with an irregular working day, the employer is allowed to involve employees in processing outside of normal working hours only EPISODICALLY. That is, no more than several times a month, Rostrud explains. And more frequent shock work is already recognized overtime work for which there is a separate charge.

So, if you meet the conditions necessary to receive an additional three days of rest (see above), then you have the right to count on payment of monetary compensation instead of such a vacation, but only on condition that the employer agrees with this, emphasizes Ivan Shklovets. At the same time, it must be borne in mind that the employer has the right to disagree and insist on the use of leave "in kind".

Also don't forget: financial compensation can only be paid for the part of the vacation exceeding 28 calendar days.

WHAT SHINES A YOUNG MOTHER?

“My wife was on parental leave for up to a year and a half, and a month ago she went to work for a shortened day - 4 hours,” says Sergey. - Tell me when she can now get a regular another vacation and how many days will she be entitled to: 28 or less?”

To obtain the right to the first paid leave in full (28 calendar days), you need to work continuously for this employer for at least six months, - explains Ivan Shklovets.

However, keep in mind: parental leave is not included in the length of service required to provide annual paid leave. At the same time, if during the period of parental leave, the mother goes to work on a part-time basis (the law allows such a regime to be established at the request of the woman), then this period will already be counted in the length of service required to provide leave.

Thus, in the situation of Sergey's wife, if she returned to work only after the end of parental leave (and this is most often found in practice), the period for granting her the next annual paid leave will be determined based on the vacation schedule in the organization. At the same time, in agreement with the employer, it is possible to grant leave in whole or in part at any time that can be agreed upon.

Many citizens who work in the same company for several years in a row simply do not have time to take all the required vacations: for one reason or another, they have to divide their vacation into several parts, as a result of which they cannot fully use the entire vacation. In such a situation, all the remaining days that employees did not use during the calendar year are transferred to the next year, but there are several nuances here:

• You can use non-vacation leave only during the next year. If in this case it was not possible to rest, the days remain, but they cannot be used.
• Managers do not have the right not to let their employees go on vacation less than once every two years. However, many neglect this rule, as a result of which employees do not go on vacation for 3,4, 5 years. It is against the law, and it is not possible to use the remaining days of rest from previous years, but they continue to accumulate.

Thus, if the employee was not on vacation alone calendar year, next year, instead of the prescribed 28 days, 56 days of rest are already listed behind it. Of course, it is not possible to use them in most cases, but the rest time continues to accumulate. This raises a reasonable question: if you can use non-vacation leave only for the last year, but there are days for other years, will it be possible to receive monetary compensation for them? The manager has the right to issue payments for them, but only if the employee is entitled not to 28, but, for example, 35 days of vacation, because. 28 days he must take a walk in without fail, while only the difference of 7 days is compensated.

Non-holiday vacation: what is it?

From a legal point of view, non-vacation leave is the days of all holidays that the employee did not take off. They are subject to either transfer to the next year or mandatory compensation, however, it can only be received upon dismissal, if for several years the employee has not been able to fully use all the holidays. Only those cases are considered a violation when the employer did not at all allow his subordinate to use even part of the rest for two years.

According to the Labor Code of the Russian Federation, the standard duration of vacations is 28 calendar days, however, it can be increased for certain categories of workers:

• Employees under the age of majority: they must be granted leave of 31 calendar days at a convenient time for them.
• Citizens involved in work with chemical weapons or substances: the duration of their rest can vary from 42 to 56 days depending on the complexity of their labor activity.
• Teachers: they are granted from 42 to 56 days of vacation, depending on the specific position.
• Employees of the prosecutor's office and investigators receive 30 days of rest, and if they work in the conditions of the Far North or in other areas with an unfavorable climate, then the duration increases from 46 to 54 days.
• Scientists working in federal organizations: Doctors of Sciences - 48 days, Candidates of Sciences - 36 days.
• Disabled people are entitled to at least 30 days of vacation.
• Employees of the Federal customs service have the right to rest for at least 30 days, excluding travel time to the place of rest and back.
• Municipal and state employees: their vacation is a minimum of 30 days.
• Rescuers and firefighters, depending on the length of service, rest from 30 to 40 days.

Many working citizens want to receive monetary compensation instead of vacation, but according to the law, this is only possible if the duration of their vacation is more than 28 days. Let's look at a specific example:

Fireman Afanasiev I.I. in 2015, he took only 15 days off, while he was supposed to be on vacation for another 20 days. In 2016, he can use the same 20 days, but he wanted to receive monetary compensation instead of going on vacation, because. he already had 35 days of rest again. The employer accepted his application and agreed to pay him compensation, but not for 20, but for 7 days, because. 28 days of vacation Afanasiev I.I. must leave anyway. The next year, not 20, but 13 days remain behind him, because. 7 days he was compensated.

Is it possible to replace non-vacation leave with monetary compensation?

As mentioned earlier, it is possible to receive compensation for unused vacation, but only if, according to the law, the employee is entitled to more than 28 days of vacation. You can only compensate for the part that exceeds the duration indicated above. For example, with a vacation of 40 days, only 12 days are compensated, 35 days - 7 days, etc.

If the employee is entitled to a vacation of only 28 days a year, then it is impossible to partially or completely compensate for it, because. he is obliged to take it off in the current or next working year.

In practice, it often happens that employees use their vacations only partially for several years. In fact, this is not a violation, because. managers do not have the right not to let their subordinates go on vacation for more than two years in a row only if the latter work continuously, i.e. do not use parts of the prescribed rest. Where do vacations go in this case? Everything is very simple here: non-vacation days are summed up in total, and employees will be able to receive compensation for them only in one case - upon dismissal. Of course, this does not suit many, because it is best to compensate for the lost rest. in cash However, there is no legal alternative yet.

It is worth noting that non-vacation leave upon dismissal is paid without fail, as well as salary for the worked period of time. To receive the money due, you do not need to write any statements, because. to transfer all payments, the very fact of termination of the employment contract is sufficient.

Summing up, it is worth highlighting the moments when compensation for non-vacation leave can be listed:

• If an employee leaves.
• If an employee asks for compensation while the duration of his vacation exceeds 28 days.

To receive compensation, you must write an appropriate application addressed to the head, because. “Automatically” it is paid only in case of dismissal, and when continuing work, the will of the employee himself is necessary.

Does unvacated vacation burn out?

In some cases labor law The Russian Federation can be called unfinished, as, for example, in the situation with unused vacations: if the duration of an employee’s rest does not exceed 28 days, but every year he took only partial vacations, then he can neither receive compensation while continuing his work, nor take them off after 2 of the year. There is only one option here: non-vacation rest can be compensated to the employee only upon dismissal, regardless of how many days he has accumulated.

Unused vacations do not burn out in any case: they are only summed up and paid only if the employment contract is terminated. What this is connected with is not explained in the legislation, however, neither the employee nor the employer simply has other options.

findings

Opening the topic of non-vacation holidays, several important points should be highlighted:

• Unused holidays can be carried over to the next year only once. If in this case it was not possible to use it, then the days remain on the employee’s account, but he will no longer be able to use them.
• If the duration of the vacation does not exceed 28 calendar days, then compensation is not provided.
• The days of unused vacation do not burn out, but are compensated only upon dismissal.

After the ratification of the Convention international organization labor, some media disseminated information that all unused vacations would be canceled, and there was also a statement that it would be possible to compensate for 2 weeks of vacation with money. In fact, this is not the case: all vacations are subject to mandatory accounting and compensation upon dismissal if it is impossible to use them, because. if the manager cannot, for some reason, release the employee for a good rest, this is only his problem. If, even when terminating the employment contract, compensation was not paid to the employee, which can be found out from the certificate from the accounting department, which is issued on the last day of work, a citizen whose rights have been violated can file a complaint with the labor inspectorate.

According to the current legislation, now the duration of the first part of the vacation in one calendar year cannot be less than 14 days - this is something that has really changed. After walking for 2 weeks, the employee can later use even 1 day of his rest: for example, take time off on account of vacation, but this requires prior agreement with the employer.

All employees must go on vacation according to the appropriate schedule, and notify the employer of their intention to go on vacation 2 weeks in advance. If there is a need to postpone the vacation, this is negotiated individually with the manager, because. in this case, you will have to redo the schedule and, possibly, transfer the rest of other employees, which can cause conflict in the team. That is why the director is not obliged to make such concessions, but if there really is the serious reason, you can use other types of holidays: for example, without pay, educational, etc.

Question about unused vacations arises sooner or later for everyone who works long enough for one employer. Some people have a question about unused vacations in connection with dismissal. The issue became especially acute in 2010, when Russia ratified the convention of the International Labor Organization (ILO). In this article, we will talk about the following questions:

Answers to frequently asked questions

Let's start with the most frequently asked questions.

Does unused vacation expire?

No, unused vacation can be used during the next working year. If during this period the vacation was not used, then you can get money for the vacation, but only by quitting.

Is it possible to take unused vacation for several years?

No, unused vacation can only be taken for the previous working year. It is impossible to sum up unused vacation for several years.

Is it possible to replace unused vacation with money?

It is possible to replace a vacation with money only in the part exceeding 28 calendar days, that is, for the majority of those who have the right to a vacation of 28 calendar days, it will not be possible to replace the vacation.

Is unused vacation paid upon dismissal?

Yes, upon dismissal, compensation for all unused vacation days is paid along with the rest of the money on the day of dismissal.

Unused vacation burning for more than three years?

No, unused vacation never expires. Another thing is that an employee can receive compensation for unused vacation only upon dismissal.

Unused vacation burns out or not 2015?

In 2015, unused vacation does not burn out, but is transferred to the next working year or compensation is paid upon dismissal

Unused vacation article

The main article that describes the right of an employee to unused leave upon dismissal is Article 127 of the Labor Code of the Russian Federation.

Unused vacation what is it

All employees are entitled to leave according to the Labor Code. The basic duration of a vacation is 28 calendar days, and some categories of employees are granted extended or additional vacations. One way or another, some employees accumulate holidays. A situation arises when an employee has a lot of vacations, but nowhere to put them. Thus, unused vacations- these are holidays that the employee did not use on time at one time, that is, he was not on vacation.

The transfer of vacation is possible, but only for a year. That is, unused vacation can only be used during the next working year, if more time has passed, then the vacation cannot be used.

Employers are prohibited from not letting employees go on vacation for two consecutive years.

In practice, many employees do not want to go on vacation for a sufficiently long time (for example, two or three or five years), or take the whole vacation, but only part of it.

Where does unused vacation go?

Nowhere, nothing happens to this vacation, but you can’t use it either. This raises a reasonable question: Is it possible to replace vacation with money?

Replacing unused vacation with monetary compensation

More recently, it was possible not to go on vacation, but to get money for it. Currently, only those who have more than 28 days of leave per year can receive holiday compensation - for example, extended or additional holidays. If an employee is only entitled to a vacation of 28 calendar days, then part of this vacation or the entire vacation cannot be replaced with money!

A reasonable question arises: the employee has not been on vacation for several years, does his unused vacation burn out?

Unused vacation expires

It turns out that for most employees, whose vacation is 28 calendar days per year, cannot be replaced by money, but can only be used for its intended purpose in the current or next working year. Where do the leftovers go? unused vacations?

Nowhere, they just hoard and the only case when compensation is paid for all unused holidays is dismissal.

Answer to the question: unused vacation is forfeited?

Not, unused vacation does not expire , but compensation for all unused vacations can only be received if you quit.

findings

Unused vacation is carried over to the next year only once, that is, vacation can be used in the current or next working year.

Compensation for unused vacation for employees with a vacation of 28 calendar days is not provided.

Unused leave does not burn out, but is paid only on the day of dismissal.

Every year, the employee must rest, the Labor Code of the Russian Federation provides for a mandatory paid period in the form of vacation with a minimum number of 28 calendar days in the general case. However, in practice, a situation often arises when employees work at the enterprise for several years without going on vacation. Is this allowed? Will non-holiday leave be burned?

In 2017, non-vacation leave, according to the labor code, does not expire. Vacation days are carried over to future periods; for all non-vacation days, upon dismissal, the employer is obliged to pay monetary compensation.

The reason for working without a break for vacation may be related both to the desire of the employee himself, and to the peculiarities of the organization of the labor process in the company. Many employees do not want to take a vacation so as not to lose their salary, intending to receive monetary compensation for vacation pay for all days not taken off.

Compensation for unused vacation days is possible only upon dismissal. You can also replace money with additionally provided paid leave to the main one. If a labor contract is not terminated, then it will not be possible to replace the unused vacation for the past working year with compensation.

Is it necessary to go on vacation every year?

Article 122 of the Labor Code of the Russian Federation says that it is provided to each employee annually. For each working year, a minimum of 28 calendar days is required. In some cases, added extra days — .

There are also provisions in Article 124 that leave for the past working year must be taken off no later than 12 months following its end. It turns out that the employee must rest at least once every 2 years. In practice, there are more and more situations when workers work for several years without going on vacation. Vacation days are cumulative. The question arises, will the accumulated non-vacation days of vacation burn out? Is it possible to receive monetary compensation for them, or can one go on one long vacation with a duration equal to the total duration of all non-holiday vacations?

Will non-holiday leave be burned in 2017?

Labor Code in 2017 in this issue does not change, the worker must still go on vacation every year. If this does not happen, then it is necessary to focus on the letter of Rostrud 1921-6, according to which an employee who has not rested for several years still has the right to all non-scheduled vacation days. The vacation did not burn out before, and does not burn out in 2017 either. There are no changes in this matter.

If the employee quits, then he must be paid monetary compensation for all non-vacation days. If an employee long time did not rest, then the total number of unspent days can be tens and hundreds of days. For all these days, compensation is considered based on the average earnings for the 12 months before dismissal.

Of course, this violates the requirements of the labor code regarding the mandatory provision of annual paid leave, however, in the Labor Code of the Russian Federation, not a single paragraph contains the rule that non-vacation days for a period exceeding 2 working years should burn out. Until such a provision is introduced into the labor legislation, the employer is obliged to pay all unspent days.

Every year we go on legal paid leave. But every time we have a lot of questions related to the long-awaited vacation. When should vacation pay be transferred, do old vacations expire, is it possible to receive compensation for unused vacation? For clarification, the portal turned to the State Labor Inspectorate in the Altai Territory. Read the answers in our regular section "Question-Answer".

How much do you need to work to go on vacation?

According to the Labor Code of the Russian Federation, a person can count on vacation after he has worked without interruption for at least six months. But there are categories of citizens to whom the employer is obliged to provide leave earlier if the employee requires it. It's about:

Employees under the age of 18;

Women - before maternity leave or immediately after it;

Employees who have adopted a child under the age of three months;

A man while his wife is on maternity leave;

One of the parents (guardian, guardian, foster parent) who is raising a disabled child under the age of 18.

An employee who has worked full year. Such leave must be provided to the employee annually in accordance with the vacation schedule established by the employer. If the company does not maintain a vacation schedule, then the question of when exactly you can relax is decided by agreement between the employee and the employer.

Is it true that old vacations "burn out"?

No. Even if, for some reason, a vacation was not granted to an employee for several years, no “burning out” of vacations occurs. The employer must provide the employee with all unused vacations.

Can I replace vacation with cash compensation?

Only those employees whose vacation exceeds 28 days can replace part of the annual paid vacation with monetary compensation. This can be done by written application and if the employer does not object to it.

To replace the annual basic paid and additional holidays pregnant women, employees under the age of 18 cannot count on monetary compensation, and employees engaged in work with harmful and hazardous conditions labor for work in appropriate conditions.

“According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations. That is, compensation is paid for vacations accumulated over the entire period of work with a particular employer,” the acting deputy explained to the portal State Inspectorate Labor in the Altai Territory Elena Sukhonos.

What to do if you are not allowed to go on vacation?

If the manager refuses to provide annual paid leave for any reason or does not provide this leave in due time, then the employee has the right to apply to the State Labor Inspectorate, as well as to the court.

The transfer of annual paid leave is possible only if the employee himself agrees to this. For example, its absence will adversely affect the work of the organization. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted. Failure to grant annual paid leave for two consecutive years is prohibited.

Does an employer have the right to split vacation into parts?

This issue is resolved by agreement between the employee and the employer. But if you choose to break annual vacation into parts, one of them must be at least 14 calendar days. The rest of the vacation you can take at least one day or two weeks in a row.

It is important to note that it is better to decide how exactly you will rest in advance and indicate this in the vacation schedule. You can declare this even after drawing up a vacation schedule, whether or not to satisfy such an application is the right of the employer.

How long does an employer have to pay holiday pay?

Vacation pay must be paid to an employee no later than three days before the start of the vacation (part 9 of article 136 of the Labor Code of the Russian Federation). Note that two weeks before the vacation, the employer is obliged to notify the employee in writing about the upcoming vacation.

If the employee was not timely paid for the annual paid leave or the employee was warned about the start time of this leave later than two weeks before it began, then the employer, at the written request of the employee, is obliged to postpone the annual paid leave for another period agreed with the employee (Article 124 of the Labor Code of the Russian Federation).