An employee is arrested... What should an employer do? (Svetlichnaya I.R.)

Article placement date: 07/21/2014

If an employee is arrested, then the employer and employees personnel service problems may arise regarding the registration of the absence of the arrested person. Also very often there are questions about whether the time of such absence is paid, whether this employee needs to be fired, etc. We will give answers to these questions in the article.

There are many reasons why an employee may not show up at work. Most often, employers perceive this action as absenteeism and apply disciplinary sanctions (remark, reprimand, dismissal) to those who are absent. This is due to the fact that the labor legislation does not contain a clear definition (list) of respectful and good reasons absences from work.
The employer independently, on the basis of the documents and explanations submitted by the employee, determines how important the reason for the absence is.
But be that as it may, in most cases there are problems with determining whether the employee was absent (for example, overslept) or did not appear at workplace for a good reason (for example, got into an accident), no. However, there are situations in which it is difficult to assign a cause to one or another category of importance. These include the arrest of an employee.

Is the reason for non-appearance important or not?

If an employee was detained or arrested, then even with all the desire, he will not be able to go to work for some time. Therefore, many employers will have a question: should this absence be considered absenteeism or not?
Arrest (detention) is a valid reason for absence from the workplace. So, the servants of Themis point out that the arrest does not apply to disrespectful reasons for the absence of an employee at the workplace, since in this case from his will, desire or unwillingness to fulfill his labor obligations depends on nothing (Resolution of the Presidium of the Moscow Regional Court of October 13, 2004 N 631). It is also noted that the detention or arrest of a person is carried out for the commission of unlawful acts that are not related to disciplinary offenses, for which the employer may apply disciplinary sanctions.
Accordingly, such an absence will not be considered absenteeism, which means that disciplinary sanctions, in particular dismissal, cannot be applied to the employee. However, there is no need to pay for the period of arrest.
Based on Art. 129 Labor Code salary is a reward for the work of an employee. Since the arrested person cannot perform his duties, the grounds for charging him wages no. An exception may be work during the period of house arrest. When a measure of restraint in the form of house arrest is chosen for a person, the judge’s decision indicates whether the arrested person can leave the house, use a computer, whether access to the Internet is allowed, and so on.
Thus, if an employee is allowed to communicate with colleagues, use the telephone and the Internet, then with the permission of the employer, he can work from home and receive a salary for this. Also, persons under house arrest are sometimes allowed to attend work.
It is worth noting that the employee retains the average earnings if the arrest period coincides with non-working periods for which the average earnings are retained (for example, with annual paid leave).

How to apply?

The legislation does not contain a clear procedure for registering an employee’s absence from work due to detention (arrest). Therefore, it is best in this case to act according to generally established rules.
It is necessary to draw up an act of absenteeism of the employee at work. The document indicates the date and exact time of the absence of the employee, as well as the time the act was drawn up. The document must be drawn up daily before the employee goes to work or is dismissed (for example, the employee is sentenced to imprisonment). You can also get a memorandum or memo from the immediate supervisor of the arrested person about the absence of the employee.
Next, you should decide how to fill out the time sheet. If the employer does not yet know the reason for the absence of the employee, then the letter code "НН" (absence for unknown reasons) or the numeric code "30" should be entered in the time sheet. The same code can also be entered in the case when it is known from the very beginning that the employee has been arrested.
This is due to the fact that in the unified form N T-12 (approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1) there is no letter or numeric code to indicate the absence of an employee at work due to arrest.
They also sometimes use the letter code "NB" (digital - "35") - suspension from work. But this is not very correct. So, suspension from work occurs only for certain circumstances, to which the arrest does not apply (for more details, see the article "How to remove an employee from work" in the journal "Practical Accounting" N 8, 2013). This code should be put in the report card only if the court removed the arrested person from work and only from the moment specified in the decision.
Recall that the employer, on the basis of the Application Procedure unified forms primary accounting documentation (approved by Decree of the State Statistics Committee of Russia dated March 24, 1999 N 20) has the right to make changes to the time sheet. Therefore, he can enter an additional code indicating the absence of an employee due to arrest; these additions must be drawn up by an appropriate order.

For reference. Based on the provisions of Art. 121 of the Labor Code, the period the employee is under arrest is included in the total vacation period, since the reason for absence from work is valid. Also, in accordance with the Regulations on the peculiarities of the procedure for calculating benefits (approved by Decree of the Government of the Russian Federation of June 15, 2007 N 375), the time of arrest is included in the billing period for payment of benefits.

If the organization has developed its own forms of primary accounting documents (since January 1, 2013, the forms contained in the albums of unified forms of primary accounting documents are not mandatory), including the time sheet, then the symbol should be chosen from those that were installed independently.
Thus, in the report card, regardless of whether the reason for the absence is known or not, you can put down the code "НН" or the code entered in the organization to indicate absence due to arrest. If the reason for the absence did not become known immediately and "НН" was already put in the report card, and a special code was entered in the company, then the document can be adjusted.
After returning to work, the employee must submit documents that confirm the reason for the absence. Depending on the measure of restraint, they can be:
- Record of administrative detention. Such detention is carried out for a period of three to 48 hours, that is, a maximum of two days. The protocol is drawn up if the employee was detained on suspicion of committing an administrative offense. The document must indicate the time of detention and release. A copy of the protocol is issued to the employee at his request. If he has not received a copy, he should be asked to do so;
- a certificate of serving an administrative arrest in a special detention center. A measure of restraint in the form of administrative arrest is chosen by the court if it is established that the person has committed an administrative offense. Such arrest is established for up to 15 days and includes the term of administrative detention. The certificate is issued in the form given in Appendix N 11 to the Internal Rules of Special Detention Centers for the Detention of Persons Arrested in Administrative Order (approved by Order of the Ministry of Internal Affairs of Russia dated 06.06.2000 N 605dsp). It must specify the period of arrest, including the period of detention;
- certificate of release from custody. It is issued to an employee arrested on suspicion of a criminal offense. The document must indicate who detained the employee, the date and time of detention and release.
For the period of arrest of an employee, the employer has the right to take another employee in his place, for example, under a fixed-term employment contract, part-time (internal and external) or in the form of a temporary transfer.

When can you be fired?

If an employee was punished in the form of administrative arrest, then he cannot be dismissed on the basis of paragraph 8 of part 1 of Art. 83 of the Labor Code. So, dismissal in this case should occur due to disqualification or other administrative punishment, which excludes the possibility for the employee to fulfill obligations under an employment contract. However, administrative arrest does not exclude the possibility of working, but only suspends for a while.
But what to do with the employee who was charged with a criminal case and even arrested during the investigation. Such an employee cannot be fired either. In this case, the employer will have to wait for the verdict. So, in case of a court verdict of not guilty, the employee can continue to work, and in case of a guilty verdict, in which a measure of punishment is chosen that excludes the possibility of working (for example, imprisonment), he must be fired.

Important. The work book and the amounts due to the employee can be issued to his representative, but only if there is a power of attorney certified by a notary or the head correctional facility.

The dismissal occurs on the basis of the conviction of the employee to a punishment that excludes the continuation of the previous work, in accordance with the court verdict, which has entered into force (clause 4, part 1, article 83 of the Labor Code of the Russian Federation). The day of dismissal on this basis is the day the court verdict enters into force, and not the last actual day of work (Determination of the Supreme Court of the Russian Federation of December 17, 2010 N 52-B10-3).
Since the conviction of an employee may not become known immediately, the dismissal order must be drawn up only after receiving reliable information (for example, a copy of the verdict). The date of issue of the order will be the date of receipt of documents confirming the conviction of the employee. For the same date, an entry is made in the work book.
The order should indicate the impossibility of familiarizing the employee with it.
As for the issuance of a work book, on the day the order is issued at the place of registration of the employee, a notice must be sent about the need to appear for it or give written consent to send the book by mail. If consent comes, then the book must be sent to the address indicated by the employee. If there is no consent, then the labor remains in the organization on demand.
The calculation can be transferred to the employee's salary card or issued to the employee's representative (only if there is a power of attorney).
An employee may also be sentenced to a suspended sentence. However, in most cases, such a punishment will not prevent him from working, which means that he can not be fired.

One fine day, the employee did not show up at the workplace without warning anyone in advance. And then it turned out that he was detained by the police and he is in a pre-trial detention center (IVS). How to reflect in the report card such an absence of an employee? Can he be fired if he does not appear for a long time? Let's consider everything in order.

How to register the absence of an employee

Let's say right away that detention is a good reason for being absent from work, regardless of whether the employee is released into the wild in a few hours or the case ends with an administrative / criminal punishment. Therefore, it is impossible to register the time of absence of an employee as absenteeism and punish him.

But you do not need to pay for this period. After all, the employee does not fulfill his labor functions, and in such cases the TC does not oblige him to pay the average salary.

FROM AUTHENTIC SOURCES

Head of Legal Department Federal Service for work and employment

“Detention of an employee law enforcement, as well as arrest in an administrative or criminal procedure, can be considered as a good reason for absence from work. In this connection, it is impossible to consider the absence of an employee as absenteeism. ”

In the time sheet, the letter code "НН" (absence for unknown reasons) or the digital code "30" should be affixed. If desired, you can additionally record the fact of the absence of an employee at work with a memorandum from his immediate supervisor. But there is no particular need for this.

Upon returning to work, the employee must provide you with a supporting document. You need to make changes to the time sheet only if your organization has a code for fixing such situations, fixed by order of the head paragraph 4 of Art. 9 of the Law of 06.12.2011 No. 402-FZ(e.g., "excused absence without pay"). If there is no such code, the time sheet may not be corrected.

Let's see what documents you will have to deal with in such situations.

What documents justify the absence of an employee

Record of administrative detention. It is issued when an employee is detained on suspicion of committing an administrative violation. paragraph 1 of Art. 27.3 of the Code of Administrative Offenses of the Russian Federation. A copy of the protocol must be given to the employee (at his request) paragraph 2 of Art. 27.4 of the Code of Administrative Offenses of the Russian Federation. As a rule, the protocol indicates not only the time of detention, but also the time of release. Appendix No. 3 to Methodological Recommendations No. 07-12 dated 04.06.2012; Appendix No. 15 to the Regulations, approved. Order of the Ministry of Internal Affairs dated 02.03.2009 No. 185. If suddenly the release time was not written immediately, ask the employee to go to law enforcement agencies for clarification. You can provide him with a letter from the organization asking for information about the exact time of release.

TELLING THE EMPLOYEE

Upon release after detention/arrest it is necessary to demand from law enforcement agencies a document confirming the fact and period of detention.

Certificate of serving an administrative arrest in a special detention center. If the employee was punished with administrative arrest, then at the end of it he will be issued a certificate in the prescribed form Appendix No. 11 to the Rules, approved. Order of the Ministry of Internal Affairs dated 06/06/2000 No. 605dsp. It will indicate the period of arrest, which includes the time of detention. paragraph 3 of Art. 3.9 Administrative Code of the Russian Federation.

Note that although administrative arrest prevents work for some time (usually no more than 15 days to Art. 3.9 Administrative Code of the Russian Federation), but you cannot fire an employee because of him. This was confirmed to us by a Rostrud specialist.

FROM AUTHENTIC SOURCES

“ Administrative arrest cannot be considered as a basis for the dismissal of an employee under paragraph 8 of part 1 of Art. 83 of the Labor Code of the Russian Federation (“disqualification or other administrative punishment that precludes the employee from fulfilling obligations under an employment contract”)” .

Rostrud

Certificate of release from custody paragraph 5 of Art. 94 Code of Criminal Procedure. Such a certificate must be brought to you by an employee who was detained on suspicion of a criminal offense, but was not arrested. It will indicate by whom he was detained, the date and time of detention and release.

A similar certificate will be given to an employee who was under arrest during the investigation and was released from prison. par. 4 tbsp. 50 of the Law of July 15, 1995 No. 103-FZ. For example, if he was sentenced to a punishment not related to deprivation of liberty, or acquitted.

What documents affect the possibility of work

Even if the worker is not arrested during the investigation, he may have obstacles to work.

They are confirmed by the following documents.

Court order for temporary suspension from office. In some cases, such a decision is made by the court (a copy will be sent to you) pp. 2, 3 art. 114 Code of Criminal Procedure. On this basis, it will be necessary to issue an order to remove the employee from work. Art. 76 Labor Code of the Russian Federation.

ORDER

On suspension from work

In accordance with Art. 76 Labor Code of the Russian Federation

I ORDER:

1. Temporarily dismiss consultant Petrov V.A. from 01.02.2011.

2. Accountants during the period of suspension from work Petrov V.A. don't pay him a salary.

Reason: decision of the Krasnogvardeisky district court of St. Petersburg dated January 30, 2013 No. 12.

31.01.2013

This period is not payable. Art. 76 Labor Code of the Russian Federation, in the report card, put down the letter code "NO" or the digital "34". Suspension from office is canceled by the decision of the inquirer (investigator) paragraph 4 of Art. 114 Code of Criminal Procedure. When a copy is sent to you (or an employee brings it), issue an order for admission to work.

The decision of the investigator on the choice of a measure of restraint in the form of a written undertaking not to leave Art. 102 Code of Criminal Procedure. An employee "under subscription" will not be able to go to another city unless he is allowed by the investigator. That is, he will not be able to perform work that is traveling in nature or associated with frequent business trips (the employee must bring a copy of the resolution to the management). In such a situation, it is possible Art. 72.1 of the Labor Code of the Russian Federation:

• <или>transfer to another job (with the consent of the employee);
• <или>moving to another workplace (without the consent of the employee, if the conditions do not change employment contract). For example, the driver is transferred to routes within the city.

TELLING THE MANAGER

Can't be fired an employee who has been prosecuted but not sentenced, preventing work from continuing. There is no such ground for terminating the employment contract.

Both options are drawn up by orders, when transferring, you must also sign an additional agreement with the employee to the employment contract with Art. 72 Labor Code of the Russian Federation. If it was not possible to transfer / move the employee, the management will be in a difficult position. You can't be suspended from work without a court decision, and you can't be fired either. What to do in such a situation? We asked Rostrud about this.

FROM AUTHENTIC SOURCES

“I believe that a situation where a travel ban prevents an employee from performing his work, and transfer to another job is impossible, can be regarded as simple for reasons beyond the control of the employer and employee a” .

Rostrud

In our opinion, such a period cannot be considered idle time. The work has not been suspended, there are simply objective obstacles to its implementation by a specific person. In addition, idle time in this case is paid on the basis of two-thirds of the average wage. articles 72.2, 157 of the Labor Code of the Russian Federation. Given that the investigation may drag on for many months, the defendant will "fly" the employer a pretty penny. Better still find him some other job.

TELLING THE MANAGER

The work of the arrested person can be entrusted to another employee, by entering into an additional agreement on internal combination. Or hire a specialist fixed-term contract(term - until the moment the temporarily absent employee leaves).

The decision of the judge on the choice of a measure of restraint in the form of house arrest a Art. 107 Code of Criminal Procedure. A copy of such a document the employee must bring (hand over) to the management to resolve the issue of the possibility of working during this period. If the decree prohibits everything (leaving the house, communicating with strangers, using mail, telephone and the Internet) paragraph 7 of Art. 107 Code of Criminal Procedure, then there are no options - the work is excluded. Put such an employee "NN" and do not accrue wages, as with a regular arrest.

If communication with colleagues and means of communication are not prohibited, then the employee can work at home (if management allows). And sometimes the judges even allow you to go to work at certain hours - of course, without business trips, overtime, etc. The same problems can arise here as with a written undertaking not to leave.

How to proceed in the event of a conviction

The verdict of the court can be both accusatory and acquittal. In the latter case, the employee will simply continue to work in your organization. Keep in mind that the period of being under arrest is included in the total vacation period. This was confirmed to us in Rostrud.

FROM AUTHENTIC SOURCES

“ Subject to the provisions of Art. 121 of the Labor Code of the Russian Federation, the period the employee is in custody (administrative arrest or the time of investigation in a criminal case) is not excluded from the length of service giving the right to an annual basic paid leave, since the reason for absence from work during this period is valid.

Rostrud

It is only necessary to exclude the time when the employee was suspended from work. paragraph 2 of Art. 114 Code of Criminal Procedure of the Russian Federation; articles 76, 121 of the Labor Code of the Russian Federation. And when calculating the experience for additional leave“for harmfulness” the time of absence from work is not taken into account Art. 121 Labor Code of the Russian Federation.

The consequences of a guilty verdict depend on the punishment the employee was sentenced to. Consider the options.

The employee will not be able to continue working

SITUATION 1. If an employee is sentenced to imprisonment articles 56, 57 of the Criminal Code of the Russian Federation then he should be fired p. 4 h. 1 art. 83 of the Labor Code of the Russian Federation. The last working day will be the day the court verdict comes into force.

How to know this date? If the organization keeps the issue under control, then you can ask the employee's lawyer to get a copy of the verdict in court with a stamp on entry into force. It will include the date clause 7.8 of the Instruction, approved. Order of the Judicial Department under the Supreme Court of April 29, 2003 No. 36.

Or you can simply contact law enforcement agencies or a specific court (if it is known) with a request.

The following entry is made in the workbook.

(1) As a rule, in such cases, the order is always issued later than the date of dismissal. This is normal, because before receiving accurate information, the organization has no right to dismiss the employee. In this case, the employer is not responsible for the delay in issuing a work book. Art. 84.1 of the Labor Code of the Russian Federation

(2) Do not forget to put a note on the dismissal order that it is impossible to familiarize the employee with him against signature due to the fact that the employee has been sentenced to imprisonment Art. 84.1 of the Labor Code of the Russian Federation. The basis for the order will be the verdict of the court

Since it is impossible to issue a work book in your hands in case of deprivation of liberty, send the employee (at the place of registration) on the day the order is issued a notice of the need to appear for it or give written consent to send the work book by mail Art. 84.1 of the Labor Code of the Russian Federation; clause 36 of the Rules, approved. Decree of the Government of April 16, 2003 No. 225.

If consent to send the work book comes, feel free to send it to the address indicated by the employee, if not, keep the work book until needed. clause 43 of the Rules, approved. Decree of the Government of April 16, 2003 No. 225.

You can give a work book to a relative only if he presents a power of attorney from your former employee(certified by a notary or the head of the correctional institution sub. 3 p. 3 art. 185 of the Civil Code of the Russian Federation).

As for the calculation, if the employee has a salary card, list all due payments on her. If he received money at the box office, then two options are possible:

• <или>deposit the settlement amount on the day of payment and hand over to the bank to clause 4.6 of the Regulations, approved. Central Bank 12.10.2011 No. 373-P;
• <или>give money to a relative of an employee by proxy (certified in the same way as for obtaining a work book and sub. 3 p. 3 art. 185 of the Civil Code of the Russian Federation).

SITUATION 2. An employee may be temporarily deprived of the right to engage in certain activities or hold certain positions and Art. 47 of the Criminal Code of the Russian Federation. You will learn about this from the notice from the Criminal Executive Inspectorate (UII) Appendix No. 13 to the Instruction, approved. Order of the Ministry of Justice dated 20.05.2009 No. 142. It will be sent to you along with a copy of the judgment.

The task of the organization in this case is to fulfill the requirements of the sentence. This can be done in two ways:

• <или>transfer the employee to another job that will not be related to the prohibited activity;
• <или>fire an employee (with the same wording as shown above). A separate line is entered in the work book about on what basis, for how long and what position the convict is deprived of the right to occupy (what activity he is deprived of the right to engage in) sub. "g" part 2 of Art. 34 of the Penal Code of the Russian Federation; clause 19 of the Rules, approved. Decree of the Government of April 16, 2003 No. 225. To correctly indicate the term in such an entry, count the required number of years of prohibition (they are indicated in the copy of the sentence) from the date of dismissal paragraph 1 of Art. 36 PEC RF. If you have difficulty counting, please contact the AIM for assistance.

The choice in this case is up to the management, it has no obligation to offer a translation. The main thing is to dismiss or transfer the employee no later than 3 calendar days upon receipt of the notice from the AIM. If the end of the three-day period falls on a non-working day, consider the next business day as the last day of the period. At the same time, it is necessary to fill out and send to the AIS a tear-off coupon for notification sub. "a" paragraph 2 of Art. 34 PEC RF.

When should an employee be fired? And how to make an entry on the prohibition of activities in the work book? We addressed these questions to Rostrud.

FROM AUTHENTIC SOURCES

“ Subject to the provisions of Art. 84.1 of the Labor Code of the Russian Federation and part 2 of Art. 34 of the Penal Code of the Russian Federation, the date of termination of an employment contract with an employee deprived of the right to hold a certain position (to engage in certain activities) should be indicated within three days after receiving a copy of the court verdict and notification from the FIA. An entry in the work book about the ban is made according to the rules of clause 5.1 of the Instruction approved Decree of the Ministry of Labor dated 10.10.2003 No. 69, that is, you need to fill in all the columns of the section "Information about the work" ".

Rostrud

In the case of transferring a convicted employee to another job (position), be prepared to periodically provide information about him to the PII sub. "b", "c" paragraph 2 of Art. 34 PEC RF:

• at their request;
• in case of any change in the employment contract or dismissal (within three days).

Please note: if the convicted employee subsequently resigns (for any reason) before the expiration of the ban, then information about the ban on activity (position) will also need to be entered in his work book.

Here is an example of an entry in work book upon voluntary dismissal.

(1) If at the time of dismissal the term of the ban has already expired, it is not necessary to write about it in the work book

(2) Suppose a teacher was deprived of the right to engage in teaching activities for a period of 3 years. The verdict entered into force on January 22, 2013, but the employee was transferred to another position only on January 28, 2013 (after receiving a notification from the AIM). Therefore, the term of the ban is a. They are appointed according to the place of their main work. And you will have to make deductions from the employee’s salary and transfer them to the state revenues. Art. 44 PEC RF; Appendix No. 31 to the Instruction, approved. Order of the Ministry of Justice dated 20.05.2009 No. 142;

But if an employee, in addition to any of the listed punishments, is prohibited from engaging in certain activities (holding a position), then he will have to be fired (transferred to another job) in the manner described above.

Detentions, arrests and other difficulties with law enforcement should not be taken as a reason to part with your employee. As you can see, only a court verdict can be grounds for dismissal, and even then not always.

How to behave correctly during administrative detention, how detention differs from arrest, what is the difference between administrative detention and detention in a criminal case, what are the terms of administrative detention and administrative arrest, what is the known 15 days. let's figure it out.

By general rule administrative detention may not last more than three hours. The detainee during administrative detention is being held in a temporary detention center.

Administrative arrest what to put in the report card

Administrative detention is carried out for a period of three to 48 hours (Article 27.5 of the Code of Administrative Offenses of the Russian Federation). The purpose of the detention is to ensure the correct and timely consideration of the case of an administrative offense (part 1 of article 27.3 of the Code of Administrative Offenses of the Russian Federation). Administrative detention in itself does not indicate guilt. individual in an offence. Perhaps the person was detained along with the real offenders by mistake.

Administrative arrest

Administrative arrest is a measure of strict liability, an administrative penalty applied for violation of the offenses established by the Administrative Code and falling within the competence of the authorities executive power. Provides temporary restriction of freedom of the offender. Established for more than 20 administrative offenses.

It is possible to serve a sentence of up to fifteen days, but violation of the established rules during the announcement of a state of emergency, the conduct of anti-terrorist operations increases to a month.

Maintaining time sheet

Maintaining timesheets is necessary with a time-based wage system. when it is required to take into account the time worked / not worked by an employee, calculate wages or draw up statistical reporting by labor. Due to the lack of information about the correct filling of time sheets, errors are often found in the latter.

For daily recording of working time at the legislative level, the following forms have been developed: a time sheet and payroll (form No. T-12) and a time sheet (form No. T-13).

The time sheet is compiled by the employee responsible for the time sheet, signed by the compiler, the head of the structural unit and the personnel officer, and then transferred to the accounting department.

Sign in

Here, the comrades correctly expressed themselves in line with the fact that absenteeism is the absence from work without good reason during the entire working day or for more than three hours during the entire working day continuously or in total both on the territory of the organization and at an object outside the territory of the organization where they are in in accordance with their job responsibilities, they must perform the assigned work.

What is a good reason for being absent from work? The Belarusian labor legislation does not contain a list of these reasons, i.e.

Citizen, let's go!

One fine day, the employee did not show up at the workplace without warning anyone in advance. And then it turned out that he was detained by the police and he is in a pre-trial detention center (IVS). How to reflect in the report card such an absence of an employee? Can he be fired if he does not appear for a long time? Let's consider everything in order.

“ Detention of an employee by law enforcement agencies, as well as arrest in an administrative or criminal procedure, can be considered as a good reason for absence from work.

How to register the absence of an employee at the workplace during his administrative arrest?

The employee was placed under administrative arrest for 5 days. How is the absence of an employee at the workplace for the period of his administrative arrest registered? What mark should be put on the time sheet before the end of the administrative arrest?

The absence of an employee from the workplace due to an administrative arrest will be considered the absence of an employee for good reasons. It is necessary to put down a special mark entered in the time sheet for such an absence of an employee.

As a result, during an administrative arrest, an employee cannot perform his labor duties against his will.

How to properly mark vacation in the report card: information for the personnel officer (1 of 2)

Previously, in many organizations, a special employee was involved in filling out the time sheet. The profession of such an employee was called a timekeeper. Now the management of an organization or enterprise believes that it is irrational to keep a special employee only to record the attendance or absence of employees at work. Accounting sheet, where it is noted working time, are an accountant, personnel specialists, as well as heads of other structures.

The subordinate was detained by the police and served three days for an administrative violation

1 answer. Moscow Viewed 127 times. Asked 2012-08-18 14:20:10 +0400 in the topic "Administrative law" What will be the punishment for this? What will be the punishment for this. Further

0 replies. Moscow Viewed 77 times. Asked 2011-12-12 22:09:58 +0400 in the topic " Housing law» Administrative penalty Article 182 part 1 violation of silence at night. What will be the punishment for this? - Administrative penalty Art. 182 part 1 violation of silence at night. What will be the punishment for this.

The employee was arrested for 10 days, what to put in the time sheet? Can they get fired for it?

Absenteeism is the absence from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ( subparagraph "a", paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

Administrative arrest or detention - a good reason for absence (Art.

Time sheet

Working time is the time during which the employee, in accordance with the rules of internal work schedule organization and the terms of the employment contract must perform labor duties, as well as other periods of time that, in accordance with laws and other regulatory legal acts, relate to working time (Article 91 of the Labor Code of the Russian Federation).

2. The inclusion of an employee in the time sheet and the exclusion from it is carried out on the basis of primary documents for personnel records (order on employment, employment contract).

What to put in the table?

If you put down HH, then these HH must be “closed” with something - either vacations, or absenteeism, or sick leave. I think it's better to arrange a vacation without saving a salary. In the end, the employee could ask the manager for a few days' leave on the fact of arrest (by phone, for example), referring simply to family circumstances. Vacation, of course, must be issued as expected - take an application, issue an order (yes, “retroactively” - unfortunately, a common practice.

We have such a situation, right from the workplace, the police took the worker. His phone number is unavailable, we can't contact him. Please tell us what to do in such a situation, based on references to the Law. Thank you.

Answer

Answer to the question:

The courts point out that the arrest does not apply to disrespectful reasons for the absence of an employee at the workplace, since in this case nothing depends on his will, desire or unwillingness to fulfill his labor duties ( Decree of the Presidium of the Moscow Regional Court dated October 13, 2004 No. 631). It is also noted that the detention or arrest of a person is carried out for the commission of unlawful acts that are not related to disciplinary offenses, for which the employer may apply disciplinary sanctions.

Accordingly, such an absence will not be considered absenteeism, which means that disciplinary sanctions, in particular dismissal, cannot be applied to the employee. However, there is no need to pay for the period of arrest.

Based on Art. 129 of the Labor Code, wages are remuneration for the work of an employee. Since the arrested person cannot perform his duties, there is no basis for accruing wages to him.

While an employee is under investigation, he cannot be dismissed until the court verdict comes into force. The day of dismissal on this basis is the day the court verdict comes into force, and not the last actual day of work

The legislation does not contain a clear procedure for registering an employee’s absence from work due to detention (arrest). Therefore, it is best in this case to act according to generally established rules.

It is necessary to draw up an act of absenteeism of the employee at work. The document indicates the date and exact time of the absence of the employee, as well as the time the act was drawn up. The document must be drawn up daily before the employee goes to work or is dismissed (for example, the employee is sentenced to imprisonment). You can also get a memorandum or memo from the immediate supervisor of the arrested person about the absence of the employee.

Next, you should decide how to fill out the time sheet. If the employer does not yet know the reason for the absence of the employee, then the letter code "НН" (absence for unknown reasons) or the numeric code "30" should be entered in the time sheet. The same code can also be entered in the case when it is known from the very beginning that the employee has been arrested.

This is due to the fact that in the unified form N T-12 (approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1) there is no letter or numeric code to indicate the absence of an employee at work due to arrest.

They also sometimes use the letter code "NB" (digital - "35") - suspension from work. But this is not very correct. So, suspension from work occurs only for certain circumstances, to which the arrest does not apply. BUT: This code should be put in the report card only if the court suspended the arrested person from work and only from the moment specified in the decision

On the basis of the Procedure for the application of unified forms of primary accounting documentation (approved by the Decree of the State Statistics Committee of Russia dated March 24, 1999 N 20), he has the right to make changes to the time sheet. Therefore, he can enter an additional code indicating the absence of an employee due to arrest; these additions must be drawn up by an appropriate order. (for example: ). For example, you can enter the code "NA", but you can replace "НН" with a different designation only after providing supporting documents.

After returning to work (if the sentence is acquittal, or the sanction is not related to deprivation of liberty), the employee must submit documents that confirm the reason for the absence. Depending on the measure of restraint, they can be:

Record of administrative detention. Such detention is carried out for a period of three to 48 hours, that is, a maximum of two days. The protocol is drawn up if the employee was detained on suspicion of committing an administrative offense. The document must indicate the time of detention and release. A copy of the protocol is issued to the employee at his request. If he has not received a copy, he should be asked to do so;

Certificate of serving an administrative arrest in a special detention center. A measure of restraint in the form of administrative arrest is chosen by the court if it is established that the person has committed an administrative offense. Such arrest is established for up to 15 days and includes the term of administrative detention. The certificate is issued in the form given in Appendix N 11 to the Internal Rules of Special Detention Centers for the Detention of Persons Arrested in Administrative Order (approved by Order of the Ministry of Internal Affairs of Russia dated 06.06.2000 N 605dsp). It must specify the period of arrest, including the period of detention;

Certificate of release from custody. It is issued to an employee arrested on suspicion of a criminal offense. The document must indicate who detained the employee, the date and time of detention and release.

If the employee is under arrest pending trial, then you should make a decision depending on the court decision. If a guilty verdict is passed, excluding the possibility of continuing work (imprisonment), then after the sentence comes into force, you will dismiss the employee under paragraph 4 of part 1 of Art. 83 of the Labor Code of the Russian Federation. The date of the order will correspond to the date you received the relevant verdict (it can be submitted by relatives, a lawyer, you can request a copy of the verdict yourself from the court in which the verdict was passed). The date of dismissal will be the date the court verdict enters into force.

In the work book, make an entry according to the model:

The entry of the wording in the order of dismissal and labor must be the same.

For obvious reasons, you will not be able to familiarize the employee with the dismissal order. In accordance with Part 2 of Art. 84.1. TK F on the order, make a note: “the employee was not familiar with the order due to his absence from work on the day of dismissal (the employee was sent to the place of execution of the court sentence on deprivation of liberty)”

About the issuance of documents upon dismissal:

In your case, the employee cannot receive a work book on the day of dismissal. The fact that an employee has been convicted does not release the employer from the obligation to send a notification to the employee about the need to receive a work book or to instruct it to be sent by mail. At the same time, such a notification can be sent both to the place of residence of the employee before conviction (at the address specified in the employment contract), and to the address of the correctional institution.

If the employee sends you a written consent to send his work book, then it will be necessary to send it to the address indicated by him, and make a note in the register of the movement of work books that the work book was sent by mail.

If the employee gives a power of attorney to receive a work book, then the work book can be issued to a person who presents a properly executed power of attorney. The power of attorney can be notarized. In a situation where an employee is sentenced to imprisonment, a power of attorney certified by the head of the penitentiary institution at the place of serving the sentence will be equated to a notarized power of attorney.

An unclaimed work book, in the absence of an order to forward it or issue it by proxy, the employer is obliged to keep for 75 years. After serving the sentence, the employee himself can apply for its extradition.

About calculation:

The amounts accrued to the employee in case of non-cash settlements with employees in your organization must be made on the day of dismissal.

If you give money in cash, then you can also give out these funds on the basis of the power of attorney of the dismissed employee to the person indicated in the power of attorney. If this did not happen, then in accordance with Article 140 of the Labor Code of the Russian Federation, you will have to issue the funds to the employee the next day after receiving a request from him.

Upon dismissal of this employee, it is necessary to make a settlement with him and pay compensation for unused vacation.

The issue of including the period of arrest in the length of service giving the right to annual leave has not been resolved by law.

There are two different positions:

1. POSITION: courts recognize the absence of an employee at work in connection with the arrest for a good reason for absence, then this period should be included in the length of service giving the right to leave.
2. POSITION: The opposite point of view boils down to the fact that this period is not included in the list (part 1 of article 121 of the Labor Code of the Russian Federation) of periods that are included in the length of service giving the right to leave. In this connection, the length of service for determining compensation can be calculated on the date preceding the arrest. And based on the specified experience, calculate compensation.

The choice of option is up to the employer.

Details in the materials of the System Personnel:

1. Situation:Is it possible to dismiss an employee who is in a pre-trial detention center in connection with the initiation of a criminal case.

No.

Detention or detention is not recognized as a basis for terminating an employment contract. The basis for the dismissal of an employee is his conviction to a punishment that excludes the continuation of his previous work, in accordance with a court verdict that has entered into force (). For dismissal on this basis, it is necessary that the sentence impose such a type of punishment that excludes the possibility of working in the same place (for example, deprivation of the right to engage in certain activities or imprisonment). Thus, prior to a guilty verdict and its entry into force, the dismissal of an employee who is subject to criminal prosecution at the initiative of the employer is unlawful.

In the situation under consideration, in the time sheet, the employee should indicate the letter code of the NB “Suspension from work (prevention from work) for reasons provided for by law, without payroll”, which corresponds to the digital code 35. If, for certain reasons, information about the whereabouts of the detained (imprisoned) employee is received late, the letter code HH “Absence for unknown reasons (until the circumstances are clarified)” or the digital code 30 must be indicated in the time sheet. in , approved .

Ivan Shklovets,

Answer: Is it possible to dismiss an employee who is in custody.

No. The Labor Code of the Russian Federation does not contain such a basis for the dismissal of an employee as detention.

An employee who is in custody can only be dismissed after he has been convicted of such a punishment that (). It is possible to dismiss such an employee not before the entry into force of a court verdict. That is, the date of his dismissal will not be the last actual day of work preceding the detention, but the day the verdict enters into force. This conclusion is also confirmed by judicial practice (see, for example, the cassation ruling of the Saratov Regional Court dated January 26, 2012 No. 33-325/2012).

An employer can remove an employee from work only on the grounds provided for by the Labor Code of the Russian Federation or other laws (). In particular, he must remove the employee from work at the request of the authorities or officials authorized by law (). These bodies include courts that make decisions on the application of such a measure of criminal procedural coercion as suspension from office ().

Thus, the employer will be able to remove an employee under investigation from work only if the court issues a decision on temporary suspension from office ().

In the absence of such a court order, the employee under investigation shall retain his place of work. After all, the Labor Code of the Russian Federation does not provide for such a basis for suspension from work as the detention of an employee ().

You do not need to pay for the time the employee is in custody. This conclusion follows from the provisions of the Labor Code of the Russian Federation, according to which a salary is paid to an employee for the performance of his labor duties and established labor standards. And in the case of detention, the employee does not fulfill his labor function Therefore, there are no grounds for paying him a salary.

The time of absence of an employee under investigation must be noted in. There is no symbol in the current regulations for the period of an employee's detention. Therefore, employers should use the “HH” mark or the digital code “30” for this case, that is, a no-show for unexplained reasons. At the same time, commercial organizations can (Art. , Law of December 6, 2011 No. 402-FZ,). Consequently, commercial organization may independently establish a separate symbol for the time the employee is in custody.

If such an employee is suspended from work, then the report card should indicate letter designation"NB" or the digital code "35", used in case of suspension from work for reasons provided for by law, without payroll.

For information on whether the time spent in custody can be taken into account for granting annual leave, see the material.

Ivan Shklovets,

Deputy Head of the Federal Service for Labor and Employment

2. Answer: What is the number of days to dismiss an employee sentenced to imprisonment. A copy of the court decision was received two weeks after it was issued.

The dismissal of an employee sentenced to serving a sentence that excludes the continuation of the previous work is possible only after the entry into force of the court verdict. The fact of the entry into force of the sentence should be clarified in the court that issued the relevant decision.*

Calculation procedure

If an employee worked in the organization for less than 11 months in a working year, then for this year he is entitled to proportional compensation (). That is, the quantity unused days leave in this case is determined in proportion to the hours worked:

The number of full months worked is determined by the number of days worked in these months. If the employee has worked for more than half a month, then this month must be taken as a full month. If an employee has worked less than half a month, then do not take this month into account at all. Such a rule is established by the Rules approved by the NCT of the USSR on April 30, 1930 No. 169.

In some cases, full compensation is paid if the employee worked in the working year from five and a half months to 11 months (approved). In particular, full compensation is paid upon dismissal of an employee in the event of:

• liquidation of the organization;
• reduction in the number or staff of the organization's employees;
• conscription for military service;
• recognition of an employee as completely incapable of work according to a medical report.

Full compensation rules (in these cases) apply only to those employees who have served less than one year in total with the organization. That is, starting from the second working year, they are subject to the rules on the proportional payment of compensation. Such explanations are contained in the letters of Rostrud and.

How to determine the number of full months worked in order to calculate compensation for unused leave upon dismissal, if the employee was hired not from the beginning of the month

The legislation does not provide a clear answer to this question.

official position on this issue has not been expressed by the regulatory authorities. However, according to the Ministry of Health and Social Development of Russia, if an employee is hired not from the beginning of the month, then it is necessary to determine the number of full months worked to calculate compensation for unused vacation upon dismissal as follows.

It is necessary to take into account not calendar, but working months. For example, if an employee was hired on January 23rd, then their full work month ends on February 22nd. The next working month begins on February 23, and ends on March 22, etc. Indirectly, this order is confirmed by the provisions of the Rules approved by the CNT of the USSR on April 30, 1930 No. 169.

Moreover, if an employee leaves before the expiration of a full working month, then when including the hours worked in the calculation, it is necessary to be guided by the Rules approved by the USSR CNT on April 30, 1930 No. 169. If the employee has worked more than half the working month, then this month must be taken as full. If the employee has worked less than half of the working month, then do not take this month into account at all.

For example, if an employee worked in the organization for the period from January 23 to March 12 before dismissal, then the number of working months will be:

• from January 23 to February 22 - one full working month;
• from February 23 to March 12 - 19 days, which is more than half of the working month from February 23 to March 22 (29 days: 2).

Thus, rounding is made up - up to two months.

If calendar months were taken into account, then the number of months worked would be reduced to one. January (from January 23 to January 30) and March (from March 1 to March 12) would not be included in the calculation, and one month would remain - February (from February 1 to February 29). This option is not beneficial for the employee and does not meet the requirements of the Ministry of Health and Social Development of Russia, set out in.

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal. The employee has worked more than 11 months

A.S. Kondratiev has been with the organization since November 23, 2006. He is entitled to annual leave of 28 calendar days.

On February 27, 2008, Kondratiev retired. Annual leave he did not take, so he is entitled to compensation for unused vacation.

The employee worked in the organization for one full year (from November 23, 2006 to November 22, 2007) and three months (from November 23, 2007 to February 27, 2008).

From January 10 to January 27, 2007, Kondratiev was on vacation without pay (18 calendar days). When determining the number of days of unused vacation for the first working year, the accountant excluded this period (minus 14 days, which should be taken into account in the length of service). It turned out that in the first working year, the employee worked for more than 11 months. So, for this year he is entitled to full compensation. That is, the number of unused vacation days for the first working year is 28 calendar days.

During the second working year, the employee worked less than 11 months (from November 23, 2007 to February 27, 2008), therefore, for this year, the accountant calculated proportional compensation to him. To calculate the number of unused vacation days this year, the accountant determined that the number of full worked (working) months from November 23, 2007 to February 27, 2008 is three:

The remaining number of days until an employee leaves is five (from 23 to 27 February 2008), which is less than half the work month (29 days : 2). Therefore, they are not taken into account when calculating compensation.

The number of unused vacation days for the second working year, the accountant determined as follows:

The total number of days for which compensation must be paid to Kondratiev for unused leave upon dismissal was:
28 days + 6.99 days = 34.99 days

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal. Employee has worked less than 11 months

VC. Volkov has been with the organization since November 23, 2007. An employee is entitled to annual leave of 28 calendar days.

On February 27, 2008, Volkov resigned. He did not take annual leave, so he is entitled to compensation for unused vacation.

The accountant determined the number of unused vacation days as follows.

The employee worked in the organization for less than 11 months (from November 23, 2007 to February 27, 2008), so he is entitled to proportional compensation. To calculate the number of unused vacation days, the accountant determined that the number of full worked (working) months is three:

• from November 23, 2007 to December 22, 2007;
• from December 23, 2007 to January 22, 2008;
• from January 23, 2008 to February 22, 2008.

The remaining number of days until an employee leaves is five days (from 23 to 27 February 2008), which is less than half the work month (29 days : 2). Therefore, they are not taken into account when calculating compensation.

28 days : 12 months × 3 months = 6.99 days

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal. The employee has worked less than 11 months. An employee was granted unpaid leave

VC. Volkov has been with the organization since January 23, 2008. An employee is entitled to annual leave of 28 calendar days. From February 1 to February 17, 2008, the employee was on leave at his own expense.

April 12, 2008 Volkov resigned. He did not take annual leave, so he is entitled to compensation for unused vacation.

The employee has worked in the organization for less than 11 months, so he is entitled to proportional compensation. To calculate the number of unused vacation days, the accountant determined that for the period from January 23, 2008 to April 12, 2008, the employee worked two full months and 21 days. Since the employee took unpaid leave for 17 days (from February 1 to February 17, 2008), the accountant deducted 3 days (17 days - 14 days) from the employee's work experience. This is due to the fact that when calculating vacation pay, leave is included in the length of service at their own expense, but within 14 days. Thus, the work experience of the employee was 2 months. and 18 days, subject to rounding - 3 months.

The accountant calculated the number of unused vacation days for which compensation must be paid to Volkov, as follows:
28 days : 12 months × 3 months = 6.99 days

Do I need to round up to full days the fractional number of days for which compensation must be paid for unused leave associated with dismissal

When calculating the number of unused vacation days for which you need to pay compensation, you may get a fractional number of days. For example, if an employee needs to pay compensation for five months of work, the result is 11.67 days (28 days: 12 months × 5 months).

The legislation does not provide for a mechanism for rounding off the number of unused vacation days. Therefore, this issue is left to the discretion of the organization.

But, if an organization decides to round up, for example, to whole days, this should be done not according to the rules of arithmetic, but in favor of the employee ().

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal. The organization has established a procedure for rounding the number of unused vacation days to whole numbers

Chief Accountant A.S. Glebova has been with the organization since May 11, 2007. On February 26, 2008, she retired. All this period the employee worked completely.

Glebova worked less than 11 months in the working year, so she is entitled to proportional compensation. To determine the number of unused vacation days, the accountant determined that the number of full (working) months of the employee's work in the organization is nine (from May 11, 2007 to February 10, 2008).

The remaining number of days until the employee leaves is 16 (from 11 to 26 February 2008), which is more than half of the working month (29 days : 2). Therefore, the accountant also included these 16 days in the calculation.

As a result, it turned out that Glebova worked 10 full months.

The organization has established a procedure for rounding the number of unused vacation days to integers.

The accountant calculated the number of unused vacation days as follows:
28 days : 12 months × 10 months = 23.33 days

The accountant rounded the resulting fractional number of unused vacation days in favor of Glebova. Therefore, compensation was paid to her for 24 calendar days.

Compensation for unused vacation

Compensation for unused vacation associated with dismissal is the average salary of an employee (art. , Labor Code of the Russian Federation).

Regardless of whether the employee’s working time is recorded in days or he has a summarized record of working time, calculate the total amount of compensation for unused leave associated with dismissal using the formula:

This procedure follows from paragraph 9 of the Regulation, approved.

Nina Kovyazina,

Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia

4. Legal framework:

Labor Code Russian Federation

dated December 30, 2001 N 197-FZ

(as amended on 12/28/2013)

Article 121

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

The length of service giving the right to annual basic paid leave includes:

actual work time;

the time when the employee did not actually work, but after him in accordance with labor law and other normative legal acts containing norms labor law, collective agreement, agreements, local regulations, the employment contract retained the place of work (position), including the time of annual paid leave, non-working holidays, days off and other days of rest provided to the employee;

time of forced absenteeism in case of illegal dismissal or removal from work and subsequent reinstatement at the previous job;

the period of suspension from work of an employee who has not passed the mandatory medical checkup through no fault of their own;

(as amended by Federal Law No. 317-FZ of November 25, 2013)

time of unpaid leave granted at the request of the employee, not exceeding 14 calendar days during the working year.

The length of service giving the right to annual basic paid leave does not include:

the time of the employee's absence from work without good reason, including as a result of his suspension from work in the cases provided for in Article 76 of this Code;

the time of leave to care for a child until he reaches the age established by law;

paragraph is invalid. - the federal law dated 22.07.2008 N 157-FZ.

In the length of service, giving the right to additional annual paid leave for work with harmful and (or) hazardous conditions labor, includes only the time actually worked in the relevant conditions.

4. Shapes: The order to terminate the employment contract (dismissal) in connection with the conviction of the employee to a punishment that precludes the continuation of work

With an order (instruction)

Ready-made plan of the main affairs of the personnel officer for the first quarter of 2019
Read the article: Why should a personnel officer check accounting, is it necessary to submit new reports in January and what code to approve for a time sheet in 2019