Many workers, especially those with small children, want to leave the office early. Companies find a solution to the problem in moving lunch time to the last hour of the working day.

Let me remind you that the Labor Code distinguishes several types of breaks during the working day. One of them is provided for rest and food. Article 108 of the Labor Code contains a provision on its duration. The break cannot be more than two hours and less than 30 minutes. A specific break period is established in each organization and is fixed in a local regulatory act. It must be provided to employees. Break time is not included in the working time and is not paid. In this regard, the most common question is the possibility of transferring lunch to the beginning or end of the working day. The law contains no prohibition. However, the wording of Part 1 of Article 108 of the Labor Code of the Russian Federation and the appointment of this break allow us to assert that such actions of companies are illegal. Separate legal acts establish that a “time-out” for rest and meals must be provided in the middle of the day or no later than 4 hours after its start. An example is the Sanitary Rules for the occupational health of car drivers, approved by the USSR Ministry of Health on May 5, 1988 No. 4616-88.

Fundamentals of the basics

Lunch provided for in Article 108 of the Labor Code must be provided during the day and divided into two parts. Providing a break at the end of working hours is contrary to the meaning of such a rest.

The break time and its specific duration are fixed by the internal labor regulations. They can be additionally spelled out in an agreement between the employee and the employer. Let me remind you that according to Part 3 of Article 68 of the Labor Code of the Russian Federation, the employer is obliged, when hiring (before signing the employment contract), to familiarize the specialist against signature with the internal labor regulations, other local regulatory legal acts directly related to the activities of the employee and the collective agreement. If it is assumed that the mode of work and rest will differ from the general rules in force in the company, then the specified information must be entered directly into the work contract (Article 57 of the Labor Code of the Russian Federation).

You can also change the working hours of an already working employee. To do this, you need to draw up an additional agreement to the contract. The latter is possible, for example, by virtue of Article 258 of the Labor Code of the Russian Federation in the event that a woman with a child under the age of one and a half years goes to work and is given breaks for feeding, as well as when the employee is recognized as disabled, the need to care for a sick family member and in other situations at the initiative of the employee and with the consent of the employer.

If, according to the conditions of production, it is impossible to provide a break for rest and food, it is necessary to provide the team with the opportunity to break and eat during working hours. The list of such positions, as well as places for eating, are established by the internal labor regulations. In this case, lunch time is included in the working time and is paid (Article 108 of the Labor Code of the Russian Federation).

If the break is postponed to the end of the day at the written request of the employee, during the inspection, the labor inspectorate may fine the company. This position is held in Rostrud. The department believes that it is impossible to transfer the lunch break to the evening. This, according to officials, is contrary to the norms of labor legislation and the requirements of sanitary rules.

In order to go home earlier, an employee can exercise the right to part-time work granted to him by Article 93 of the Labor Code. The employer, for its part, has the right to establish a break for rest and meals, included in the working day (Article 224 of the Labor Code of the Russian Federation).

Example

40 percent of Russians do not use time for a lunch break, 25 percent rest, but do not bathe. According to the ABC broadcaster and the National Restaurant Association.

Suppose an employee was set an 8-hour working day from 10.00 to 19.00 with a break from 13.30 to 14.30. The employee asks to move lunch to the end of the working day. This break is not included in working hours. It turns out that the working day will be from 10.00 to 18.00, and the break - from 18.00 to 19.00. Consequently, lunch no longer interrupts the working day, which means that it is no longer a break.

Thus, lunch, provided for in Article 108 of the Labor Code, must be provided during the day and divided into two parts. Providing a break at the end of working hours is contrary to the meaning of such a rest.

Legal Ways

How to legally shorten the working day and allow employees to leave early? Let's consider another situation: the employees of one of the departments applied for a reduction in lunch from an hour to 30 minutes in order to reduce the length of time spent in the office by half an hour. Is the employer obliged in this case to change the duration of the break for rest and meals? The answer is yes. In this case, it is necessary to make appropriate changes to the internal labor regulations, collective or labor contract. At the same time, the company is only obliged to comply with the provisions of Part 1 of Article 108 of the Labor Code of the Russian Federation, that is, establish in the internal labor regulations (or by agreement between the employee and the employer) a lunch break of at least 30 minutes.

Example

The employee was set an 8-hour working day from 09.00 to 18.00 with a break from 13.00 to 14.00. An employee asks to cut lunch by 30 minutes. In fact, it will work from 09.00 to 17.30 with a break from 13.00 to 13.30.

Thus, it is not a violation that the lunch time will be reduced from one hour to 30 minutes. If the break in the organization lasts an hour or more, then for a particular employee it can be reduced to half an hour.

The Labor Code provides for several types of breaks for employees during the working day. The main one is for rest and food. For mothers of children under the age of 1.5 years, employers must provide breaks for feeding babies. For those who work in the cold, heating breaks have been introduced.

The types, beginning and duration of breaks are determined by the collective or labor agreements, as well as the internal regulations in the organization.

What is meant by a break for rest and food

According to Art. 108 of the Labor Code of the Russian Federation, during the working day or shift, each employee needs a break for rest and meals lasting from 30 minutes to 2 hours, which is not included in working hours. Its time and exact duration are determined by the internal regulations or an agreement between the employee and the employer.

If the conditions of production do not allow the employee to leave, then the employer is obliged to provide him with the opportunity to rest and eat at the workplace during working hours. The list of such works, as well as places for rest and food, are fixed in the internal regulations.

According to the law, rest time is a period of time when a citizen has the right not to work and use it at his own discretion. We read about.

Why appointment of a break for rest and meals is the responsibility of the employer

According to the Labor Code of the Russian Federation, a lunch break should be provided to all employees without exception. The rights of employees to rest during each working day are also enshrined in Art. 37 of the Constitution of Russia.

The need to eat several times a day at certain time intervals is dictated by the physiological needs of a person. For this reason, every worker should get a break from work to have lunch.

What is the minimum/maximum break duration and how is it regulated

The minimum duration of a break for rest and meals is 30 minutes. Its maximum duration is 2 hours.

In an employment contract, a break can be stipulated if for a particular employee it differs from the general one for the organization: for example, it can prescribe the conditions for granting breaks to sales agents, merchandisers, other employees with “field” working conditions who are unable to foresee how long negotiations or work with different clients.

Curious facts

A break can be prescribed in an employment contract if for a certain employee it differs from the general one in the organization: for example, it can indicate the conditions for granting breaks to sales agents, merchandisers, and other workers with “field” working conditions who are unable to determine how Negotiations or work with different clients will be delayed.

The time and duration of the lunch break at the enterprise are regulated by the internal regulations, but when compiling it, the employer must comply with the norms of the Labor Code of the Russian Federation. The Labor Code allows the employer to provide employees with this type of vacation in different ways. If necessary, it is allowed to set several breaks lasting less than half an hour each, but so that their total duration is at least 30 minutes.

Exceptions for breaks for heating and rest

Article 109 of the Labor Code of the Russian Federation provides for special breaks for rest and heating. They are provided to those who work outside in cold weather, and, if necessary, to other employees. The employer is obliged to equip a special room where employees can warm up and relax. The time of such breaks is working, and their duration is set at the discretion of the management and is fixed in the local act.

Lunch break during part-time work

In the event that a part-time worker is set for an employee, he must still be provided with a lunch break. This is a requirement of Art. 93 of the Labor Code of the Russian Federation. The minimum duration of such a rest is 30 minutes, as is the case with a full day.

Other mandatory breaks

Employees who have children under the age of 1.5 years are entitled to receive an additional break for feeding a child every 3 hours on the basis of Part 1 of Art. 258 of the Labor Code of the Russian Federation. The duration of such a rest is at least 30 minutes. This time is allowed to be added to the lunch break. If there are two or more children under the age of 1.5 years, then the duration of each feeding break is increased to 1 hour.

The employer is obliged to pay for such rest time. This legal guarantee is given to female workers by Part 4 of Art. 258 of the Labor Code of the Russian Federation.

Part-time work does not prevent a woman from being given breaks to feed her child. According to paragraph 15 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 1 of 01/28/14, working single fathers are also entitled to take advantage of these breaks.

The Order of the Ministry of Education and Science No. 69 dated March 27, 2003 states that employees working in the field of education, that is, teachers, educators, teachers, teachers, etc., do not stop their work, cannot take a break and dine only with children for whom they are responsible. Lunch breaks are paid.

Do breaks count as working time?

In Art. 108 of the Labor Code of the Russian Federation states that a lunch break is not included during working hours. He is not paid. The employee has the right to dispose of the time of such rest at his discretion.

There is an exception to this rule. The lunch break is included in the working hours and is paid if the working conditions do not allow the management to provide employees with such a break. This happens when, due to the specifics of work, employees cannot leave. In such cases, they should be able to eat at the workplace during working hours.

In the video, the specialist talks about breaks for rest and meals

The nuances of a break with a reduced and increased working day

In the Labor Code of the Russian Federation, a lunch break with a reduced working day is regulated by Art. 93. It guarantees employees who work under such conditions equal rights with other employees. Even if the working day lasts 2 hours, a person is entitled to a lunch break of at least 30 minutes.

For employees with extended working hours, the law does not provide for additional lunch time. In such cases, the decision remains with the management. It has the right to independently or in agreement with the employee to amend the internal regulations by adding an additional lunch break.

Ask questions in the comments to the article and get an expert answer

The concept of daily work

Daily work is understood as the performance by the employee of his labor duties within 24 hours. With regard to such a regime, there are no prohibitions in the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), but when establishing it, the following must be taken into account:

• per week, the employee must work no more than 40 hours - part 2 of Art. 91 of the Labor Code of the Russian Federation (for information on who has a shorter working week, read our article “Reduced working hours (nuances)”);
• during the week, the employee must have a continuous rest of at least 42 hours (Article 110 of the Labor Code of the Russian Federation).
• not all categories of workers can be involved in shift work lasting a day due to the presence of restrictions on the length of the working day / week for certain categories of workers (minors, disabled people, etc. - Articles 92, 94 of the Labor Code of the Russian Federation) - see block - diagram below;
• not all categories of workers can be involved in work according to such a schedule due to the ban on involving them in work at night - Art. 96 of the Labor Code of the Russian Federation (more details in our article “Payment for night work under the Labor Code (nuances)”).

How to schedule work and rest for daily shifts?

The most common schedules in practice are a day after 2 and a day after 3. With such schedules, the requirement for a 40-hour week is violated, so the employer introduces a summarized time accounting provided for in Art. 104 of the Labor Code of the Russian Federation.

Risks! According to Art. 104 of the Labor Code of the Russian Federation, if it is not possible to comply with the daily and weekly working time limits, the employer considers the hours worked for the accounting period and controls that they do not exceed the established norm for the accounting period.

The procedure for introducing summarized accounting of working time is regulated by the internal labor regulations. Accordingly, these rules also determine the accounting period - a month, quarter, six months or a year. It is not allowed by law to take into account hours worked for more than a year (for workers in the industry with harmful conditions, the limit is 3 months - part 1 of article 104 of the Labor Code of the Russian Federation).

Note! Thanks to the accounting of working hours, unworked hours can be covered by overworked ones.

The normal number of working hours for the accounting period is determined on the basis of the weekly working hours established for this category of employees.

Consider, using a specific example, the rules for scheduling daily work, for example, for April 2019:

• scheme - in 3 days;
• accounting period - month;
• the number of working days according to the calendar of the five-day working week - 22;
• the number of hours per month that accounted for the reduction in working hours in April 2019 is 1 hour.

The calculation of the norm of hours of working time for a month is carried out in accordance with the Calculation Procedure ..., approved. by order of the Ministry of Health and Social Development of August 13, 2009 No. 588n:

Norm hours \u003d (40 hours x 5 / 22) - 1 hour \u003d 175 hours.

The shift schedule for the month is presented below (C - shift, B - day off).

Working hours and rest time with a daily schedule

The start and end times of work are indicated in the internal regulations and, if necessary, in the employment contract.

According to the Labor Code of the Russian Federation, with a daily work schedule, the rest time is no different from the rest time under other modes of operation. It is established subject to the provisions of Sec. 18 of the Labor Code of the Russian Federation:

• during the working day (shift), the employee must be given a break for rest and meals lasting no more than two hours and at least 30 minutes, which is not included in working hours (part 1 of article 108 of the Labor Code of the Russian Federation). If an employee is on a shift lasting 24 hours, then during this time, then, for example, the internal labor regulations may provide for 2 breaks of 1 hour or 4 of 30 minutes. etc.;
• if the employer cannot provide the employee with the opportunity to leave the workplace and use the rest time at his discretion (which most often happens with daily work), then the time for eating and rest will be included in the working time.

Note! In accordance with the above, the time sheet may indicate a shift lasting 22 hours (for example, if the employee is given 2 hours for a break during the shift and the employee can leave the workplace) or 24 hours (if the employee could not be absent from workplace).

Weekends are 2 or 3 days (depending on the mode) after 24 hours worked.

Important! Generally accepted days off (Saturday, Sunday) or holidays, if a shift falls on them, they are not days off, because the employee works according to his own schedule and the days off for him are determined precisely in accordance with such a shift schedule.

Is the daily schedule a shift work

The daily schedule can be set not only for shift work, but also in the flexible schedule mode provided for in Art. 102 of the Labor Code of the Russian Federation. How they differ - see the table below.

Note! Regardless of the type of regime in force at the enterprise, the employee retains his labor rights and guarantees. For example, in case of non-attendance at work for good reasons (sick leave, etc.), the employee is not required to work off the missed shift. Of course, all other guarantees provided for by the Labor Code of the Russian Federation are also preserved (the right to annual paid leave, laid down in the reduction of compensation and payments, etc.)

Pay for daily work

Remuneration for flexible and shift work has the following features:

• actual hours worked are paid: salary or rate;
• night work is paid at an increased rate in accordance with Art. 154 of the Labor Code of the Russian Federation (in 2020, the increase occurs at least in the amount of 20% of the salary / hourly rate for each hour of night time - see Decree of the Government of the Russian Federation of July 22, 2008 No. 554);
• the holiday on which the shift fell is paid at a double rate (except when the employee is given a day of rest for working on a holiday, in which case the payment is made at a single rate). If only part of the shift fell on a holiday, then only the hours actually worked on that day are paid at a double rate (part 3 of article 153 of the Labor Code of the Russian Federation) - you can read about the intricacies of the calculation in the article “How holidays are paid with a shift schedule ? ;
• overtime for the first 2 hours is paid at 1.5 times, the next - at a double rate (Article 152 of the Labor Code of the Russian Federation).

Note! All rates / surcharges / increases can be changed by local acts in a direction greater than those established by the Labor Code of the Russian Federation.

Shift work has such a specificity that when calculating the amount of hours actually worked, the employee accumulates overtime hours. In this regard, the employer should carefully consider the following points:

• he is responsible for accurately accounting for the overtime of each employee (part 7 of article 99 of the Labor Code of the Russian Federation);
• overtime work should not exceed 120 hours per year (part 6 of article 99 of the Labor Code of the Russian Federation);
• work on weekends and holidays does not apply to overtime (part 3 of article 152 of the Labor Code of the Russian Federation).

To determine the exact amount of payment for overtime work, it is recommended that calculations be made under this item at the end of the accounting period.

So, rest time with a daily work schedule is lunch breaks, following several days after work (established by the internal labor regulations), vacation. Saturday, Sunday and public holidays falling on the shift are not days off and overtime. At the same time, the worked days off according to the schedule and holidays are paid at a double rate (or at a single rate, provided that the employee is additionally provided with a rest day).

The rules for providing a break for rest and food (usually called a lunch break) are defined in Art. 108 of the Labor Code of the Russian Federation. So, as a general rule, an employee must be given a lunch break during the working day (shift). The duration of the lunch break (break for rest and meals) is no more than 2 hours and no less than 30 minutes. That is, the specific duration of the break and the time it is granted is determined by the employer and indicated in the Internal Labor Regulations (hereinafter referred to as the IWTR) or in an agreement between the employer and the employee. Recall that the employee must be familiarized with the PWTR before signing the employment contract (Article 68 of the Labor Code of the Russian Federation).

The provision on providing employees with lunch time is mandatory for employers, regardless of the working hours established in the organization and the length of the working day (shift) (Letter of the Ministry of Labor of November 17, 2017 No. 14-2 / ​​B-1012).

By the way, if an employee works on the night shift, he is given a lunch break according to the same rules.

Lunch time for part-time employees

An employee may not be given a lunch break if the duration of his daily work (shift) does not exceed 4 hours (Article 108 of the Labor Code of the Russian Federation). But the absence of a lunch break must be recorded in the PWTR or in the employment contract with the employee.

Can there be no lunch break under the Labor Code

This is possible in jobs where it is impossible to interrupt the production process. Then the employer must provide the employee with the opportunity to rest and eat during working hours at the workplace. That is, a place for eating should be organized. The list of such “inseparable from production” work is established in the same PWTR.

Is the lunch break included in working hours?

Is lunch considered working time? No, in general, the lunch break is not included in working hours. Therefore, the answer to the question of whether the lunch break is paid is also negative.

By the way, the fact that the lunch break according to the Labor Code is not included in working hours also affects this. Suppose an employee was absent from the workplace for more than 4 hours in a row, but this time included a lunch break. That is, minus the time of absence during the lunch break, less than 4 hours of absence fell on working time. In such a situation, it is impossible to dismiss an employee for absenteeism (Appeal ruling of the Sverdlovsk Regional Court dated March 13, 2018 N 33-4752 / 2018).

Lunch time for the driver

Drivers, as well as other employees, must be provided with a lunch break of at least 30 minutes and no more than 2 hours. As a rule, such a break is organized in the middle of the shift. If the duration of the driver's daily work exceeds 8 hours, then two breaks for rest and meals can be set while maintaining the same total duration (at least 30 minutes and not more than 2 hours) (clause 24 of the Regulation, approved by Order of the Ministry of Transport dated 20.08. 2004 No. 15).

floating lunch break

Sometimes working conditions are such that it is difficult to set a specific time for a lunch break. In this case, by agreement between the employee and the employer, you can:

• divide the break into parts. But at the same time, breaking a break into parts lasting less than 30 minutes is unacceptable;
• set a floating lunch break time (for example, set that a 1-hour lunch break is provided to an employee from 12.00 to 15.00).

Specific rules for providing a lunch break must be prescribed in the PVTR.

Changing the length of your lunch break

Suppose an employer decides to shorten the lunch break from 1 hour to 45 minutes. How to introduce such an innovation? Since the terms of the employment contract are changing, it is necessary to conclude a written supplementary agreement with each employee to the employment contract on changing the working hours (

Does the law provide for an employee to have a mandatory second lunch break (break for rest and meals)?

Answer