Tatyana Gezha,
expert consultant of ZAO TLS-GROUP
Today, situations are not uncommon when, for one reason or another, organizations have to suspend their activities. How to be in this situation? What to do with employees? After all, it is impossible to send everyone on the so-called “administrative” leave en masse. Translation into incomplete working time(incomplete working week) is possible only for reasons related to changes in organizational or technological working conditions. In this situation, in accordance with the law, only the introduction of idle mode is possible
Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (part 2 of article 72.2 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation)).
Although the Labor Code of the Russian Federation does not explain what is the reason for the economic nature, it can be assumed that the decrease in production volumes, services provided, the number of sales is such a reason.
Regardless of external or internal factors leading to downtime, art. 157 of the Labor Code of the Russian Federation distinguishes between three types of downtime:
- downtime due to the fault of the employer;
- downtime for reasons beyond the control of the employer and employee;
- downtime due to the fault of the employee.
How to set up an idle period
Since there are no unified forms for processing downtime, the organization must develop actions and workflow in this case herself. For example, the algorithm of actions in this case may be as follows.
1. First you need to record in writing the fact of the downtime.
Can be compiled in writing an act or a report on the reason that led to the downtime (Appendix 1).
2. On the basis of a report or act, the head of the organization issues an order to introduce downtime (Appendix 2). The order must indicate the start and end dates of the downtime (if the end date is known at the time of issuing the order), whose fault it arose, which workers will be sent to downtime, the order of work at the time of downtime, the procedure for paying for downtime.
Notifying the employment service
In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in Russian Federation» from January 1, 2009, when introducing part-time work or suspending production, employers are required to notify the employment service in writing about this within three working days after the decision to carry out the relevant measures is taken.
Legislatively approved forms this notification does not exist, so you can notify the employment service in any form (Appendix 3).
Responsibility for failure to submit a notification is not prescribed in the legislation. However, it can be assumed that the employer may be held administratively liable in accordance with Art. 19.7 of the Code of Administrative Offenses of the Russian Federation for failure to submit or untimely submission to a state body (official) of information (information), the submission of which is provided for by law and is necessary for the implementation of this body (official) of its legal activities in the form of a fine:
- on the officials- from 300 to 500 rubles;
- for legal entities - from 3,000 to 5,000 rubles.
We draw up a time sheet
In accordance with the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1, downtime is noted in the time sheet:
- through the fault of the employer - the letter code "RP", the digital code "31";
- for reasons beyond the control of the employer and employee - the letter code "NP", the digital code "32";
- through the fault of the employee - the letter code "VP", the digital code "33".
Downtime payment
- Due to the fault of the employer
In accordance with Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least two-thirds of the average wages worker. A collective or labor agreement in an organization may provide for higher downtime pay. At the same time, to calculate the average wage, all types of payments provided for by the wage system used by the relevant employer are taken into account, regardless of the sources of these payments (Article 139 of the Labor Code of the Russian Federation). The calculation of the average wage is carried out in accordance with Decree of the Government of the Russian Federation of December 24, 2007 No. 922 "On the peculiarities of the procedure for calculating the average wage."
The calculation of payment for downtime due to the fault of the employer will be made according to the formula:
(average daily salary of an employee) x
(2/3) x (number of working days of downtime). - Due to employee
Downtime due to the fault of the employee (absenteeism, intentional damage production equipment, improper operation of equipment, theft of materials, etc.) is not paid (part 3 of article 157 of the Labor Code of the Russian Federation). - For reasons beyond the control of the employer and employee
In accordance with Part 2 of Art. 157 of the Labor Code of the Russian Federation, downtime for reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime.
The calculation of payment for downtime for reasons beyond the control of the employer and employee will be made according to the formula:
(monthly tariff rate (salary)) / (number of working days in the month of downtime) x (2/3) x (number of working days in the downtime period).
It is often difficult to understand whose fault the downtime occurred - through the fault of the employer or for reasons beyond the control of the employer and employee. For example, the employer's position is widespread that downtime for economic reasons (financial crisis) is downtime for reasons beyond the control of the employer and employee.
How to determine whose fault the downtime occurred?
Let's say there's a hardware failure. If the employer did not periodically conduct scheduled technical inspections, did not control the proper condition of the equipment, this is a downtime due to the fault of the employer. If there were any force majeure circumstances, this is downtime for reasons beyond the control of the employer and employee. If the equipment was used in violation of the rules of operation - this is a downtime due to the fault of the employee.
As for the difficult financial situation, the position of experts is ambiguous.
Some tend to conclude that the employer, in accordance with Art. 22 of the Labor Code of the Russian Federation is obliged to provide work stipulated by an employment contract. And if the employer was unable to collect a sufficient number of orders and could not provide the employee with work, the downtime in this case occurred through the fault of the employer.
The opinion of other experts that the fault of the employer in this case, as well as in cases where the organization was let down by suppliers, is not.
In such cases, in our opinion, it is more expedient either to pay this period as downtime for reasons beyond the control of the employer and the employee, or to analyze each situation individually and in some cases pay as downtime due to the fault of the employer, and in some cases - for reasons independent of employer and employee.
But be prepared for the fact that the employee may not agree with your decision and go to court. And the court will already establish the presence or absence of the employer's fault in this case.
During the period of downtime, it is possible to transfer an employee to another job (Article 72.2 of the Labor Code of the Russian Federation).
sick leave payment
In accordance with paragraph 5 of part 1 of Art. 9 federal law dated December 29, 2006 No. 255-FZ “On mandatory social insurance in case of temporary disability and in connection with motherhood” from January 1, 2011, temporary disability benefits are not assigned to the insured person for the period of downtime. An exception, in accordance with paragraph 7 of Art. 7 of the said Law are situations where temporary disability occurred before the downtime period and continues during the downtime period. The temporary incapacity benefit for the period of downtime is paid in the same amount in which wages are maintained during this time, but not higher than the amount of temporary incapacity for work benefit that the insured person would receive under the general rules.
Downtime taxes
Payment for forced downtime is considered the employee's income subject to personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation). In accordance with Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, all incomes of the taxpayer received by him both in cash and in kind or the right to dispose of which he has arisen are taken into account.
In accordance with Art. 7 of the Federal Law of 24.07.2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, federal fund compulsory medical insurance and territorial funds of compulsory medical insurance” the object of taxation of insurance premiums for payers of insurance premiums is recognized as payments and other remuneration accrued by payers of insurance premiums in favor of individuals within labor relations. Consequently, the payment of forced downtime is subject to insurance premiums.
In accordance with paragraph 3 of Decree of the Government of the Russian Federation of March 2, 2000 No. 184 “On approval of the Rules for the calculation, accounting and spending of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases» payment of the downtime period is subject to insurance premiums against industrial accidents and occupational diseases.
Suspense production process for reasons beyond its control, it is a mistake of the head of the enterprise. This measure is forced and may entail various inconveniences, but it is taken in order to save jobs, and when the factors that caused it are eliminated, it completely allows the enterprise.
Regulation under the Labor Code of the Russian Federation
When such a non-standard situation occurs, the employee needs to know his rights and defend them if necessary. The rights and obligations of the manager during downtime are described in detail in the Labor Code of the Russian Federation.
Any aspects of labor relations are reflected in a special legal document called the Labor Code of the Russian Federation. Forced downtime due to the fault of the employer is described in detail in article 72.2 of the Labor Code of the Russian Federation, article 157 indicates minimum size wages of an employee in the event of a temporary suspension of the enterprise. In case of forced downtime of the enterprise due to the fault
employer, the employee at least 2/3 of his average salary for the period of absence from work and the employer does not provide alternative opportunities to continue labor activity according to an employment contract.
This compensation is paid for the entire period of downtime. Compensation takes into account the average salary, which is calculated from the salary of the employee. In this case monthly salary divided by the number of hours he is required to work during this period, and multiplied by the number of hours of forced downtime. If the forced suspension of work duties has formed
due to the fault of the employee, such compensation is not paid.
What could cause this to happen?
There are several reasons that can cause a downtime:
Technological or technical reason
Most often, it is caused by the introduction of new equipment into production, which will require additional training and advanced training from personnel. Sometimes, suspension can occur on
due to the failure of critical components and mechanisms, or other equipment, which will entail the impossibility of the personnel to perform their duties until the equipment is fully restored.
For the technological factors of suspension of activities, the responsibility lies entirely with the employer, and during the onset of such a situation, monetary compensation is paid in the manner prescribed by law.
Organizational
Occurs when management decides to change the organization of the production process.
Economic
A common reason for downtime is caused by the financial distress of the enterprise. Very often, the direct fault of the employer in this type of suspension of production is not observed. Financial crises and sharp fluctuations in demand for a particular product can be the cause of this situation. Downtime of the enterprise may be caused by non-compliance by counterparties with their obligations.
Even if the forced suspension of the company's activities is caused by external factors, the responsibility, in any case, lies with the head of the enterprise. concept entrepreneurial activity involves doing business at your own risk, so workers' compensation must be paid in full in this type of business interruption.
Forced downtime due to the fault of the employer - the process of registration
In the event that an employee cannot perform his duties for reasons beyond his control, he is obliged to immediately notify his management. The authorities can be notified in writing or communicated orally. Regardless of the form of notification, you must report the exact time since the suspension of the workflow.
After the employer is informed of the forced downtime, he needs to issue an order in which the following points will be displayed:
- date of commencement of the suspension of work;
- positions and names of employees whose professional activity has been suspended;
- indicate the amount of wages for the period of downtime;
- indicate the person responsible for the forced downtime.
After issuing the order, the employer is obliged to familiarize each employee of the enterprise with this document.
Obligations of the employer in case of forced downtime
When the company is idle due to the fault of the employer, he has the following responsibilities:
the employer must acknowledge the fact of downtime, and issue an order in accordance with all the rules of the Labor Code of the Russian Federation;
the management of the enterprise must take all possible measures to stop the downtime.
the employer is obliged to provide an opportunity for employees of the enterprise to fulfill their labor obligations. If this is not possible, then management should monetary compensation employees in accordance with the Labor Code of the Russian Federation.
If the listed norms are not fully implemented by the management, the employee has the right to go to court to compensate for wages during the downtime of the company.
The nuances of payment - what and to whom?
In the event of downtime due to the fault of the employer, employees are paid compensation for the entire period of absence of work, in the amount of at least 2/3 of the amount average salary worker. During downtime, the employee must be at work, otherwise compensation will not be paid to him.
What to do if the employer does not pay the downtime period?
In case of non-payment of compensation by the employer, the employee may apply to the court to recover the compensation due to him by law. On the part of the management, in the event of a suspension of the enterprise, there may be cases of deception. When a moment arises when the enterprise does not function due to the fault of the employer, the management tries to send employees on vacation at their own expense.
If such violations of the labor code are discovered labor inspectorate, then the employer faces considerable penalties, as well as the danger of losing the right to engage in entrepreneurial activity for up to 3 years. In that case, the company's management does not pay compensation for the downtime period, the employee has the right to file a lawsuit for compensation for moral damage. The amount of such a claim will depend on the legislation and the wishes of the injured party.
What should an employee do during downtime?
The downtime period is not a vacation, and the employee must be at the workplace even if he fulfills his job responsibilities he can't due to the current situation. If an employee stays at home during the idle time of the enterprise, then this fact can be regarded as absenteeism, therefore, even if an agreement has been reached with the employer that employees may not be present at work during this period, this fact should be displayed in the corresponding order.
The employee should exercise caution in such a situation. Even if there is verbal permission from the management not to visit the place of work, it is necessary to demand legal registration such. Many dishonest employers, taking advantage of the legal illiteracy of their subordinates after the end of the suspension period, may accuse employees of violating labor standards in order not to pay monetary compensation for the period
just me.
If there is a position corresponding to his qualifications, then the employer may offer to transfer the employee to another department. With such a transfer, the level of wages should not decrease. It is possible to make a transfer without the consent of the employee, only in case of forced downtime for a period of not more than a month. If the suspension of the activity of the enterprise is possible for a longer time, then the employee in new department can only be done with his consent.
The time for which an employee is transferred to a new department should not be more than 1 year. After this period, the employer is obliged to return the employee to the previous place of work, or officially register in a new one.
Is sick leave paid for forced downtime?
During the period of forced downtime of the enterprise, sick leave benefits are not paid. If the employee’s period of incapacity for work began before the start of the suspension of activities, and ended during forced downtime, then he is paid sick leave, only for hours actually worked in production.
A similar situation with the payment of a hospital benefit may occur if a citizen’s incapacity for work arose during the downtime of the enterprise, and ended after the end of the downtime of the company, then in this case the benefit is also paid only for the time the enterprise is operating in standard mode.
Conclusion
During the period of suspension of the enterprise, employees lose 1/3 of their earnings, but if dishonest methods of financial relations with employees are taken by the management, they may lose their earnings in full. When a downtime occurs, verbal instructions from the boss are not enough.
In the absence of appropriate written orders, it is necessary to require him to issue an order in accordance with all the rules of the Labor Code of the Russian Federation. If the company's management does not strive to comply with the legislation of the Russian Federation, then it is necessary to contact the relevant authorities to resolve conflict situations between the employer and employees.
At gross violations of the Labor Code, the employer may be sued for compensation for moral damages and compensation for wages.
In contact with
There are situations when things at the enterprise are not going as well as we would like, and it is necessary to temporarily suspend work. What to do with the employees in this case? Announce simple! To ensure that the introduction of downtime does not turn into litigation, it is necessary to correctly draw up all the documents. We will study what mistakes employers make in such situations.
It is no secret that the norms of the Labor Code of the Russian Federation on downtime are not numerous. According to Art. 72.2 of the Labor Code of the Russian Federation, idle time is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. By virtue of Art. 22, 56 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with work stipulated by the employment contract. In case of failure to fulfill this obligation, the legislator imposes liability on the employer in the form of payment for downtime.
According to Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least 2/3 of the average salary of the employee. Downtime for reasons beyond the control of the employer and employee is paid in the amount of at least 2/3 of the tariff rate, salary (official salary), calculated in proportion to the downtime. Downtime due to the fault of the employee is not paid.
With a rather "modest" legal regulation just me personnel services are forced to turn to judicial practice in order to avoid mistakes when registering downtime and protect the employer from litigation. Consider what mistakes employers most often make when declaring downtime.
1. Incorrectly defined downtime type
The Labor Code of the Russian Federation distinguishes three types of downtime: due to the fault of the employer, for reasons beyond the control of the employer and the employee, and through the fault of the employee. Depending on the type of downtime, the Labor Code of the Russian Federation provides for various amounts of downtime payment. Determine whether the employer is at fault, or the downtime arose for reasons beyond the control of either party employment contract, is not easy in practice. In the event of an incorrect determination of the type of downtime and the amount of payment, the employer will be forced, according to a court decision, not only to make additional payments, but also to compensate for moral damage, and if the employee applies to the labor inspectorate, he will also pay a fine.
Note. There is no exhaustive list of reasons for downtime in the Labor Code of the Russian Federation. It can be:
liquidation, merger or division structural divisions companies (organizational reasons);
– introduction of new or change existing methods production of products (technological reasons);
- breakdown, replacement or modernization of production equipment (technical reasons);
- financial crisis, severe financial situation companies, violation of contractual obligations by counterparties (reasons of an economic nature).
The main criterion for downtime due to the fault of the employer is that it is caused by the guilty actions or inaction of the employer - both intentional and as a result of inept management, failure to take into account entrepreneurial risk. Moreover, the obligation to prove the existence of these circumstances rests with the employer (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").
Often, employers refer to the introduction of downtime due to the deterioration of the economic situation in the organization, believing that the reason did not depend on any of the parties to the employment contract. However, this opinion is erroneous. Judicial practice does not support it.
Arbitrage practice. The Vladimir Regional Court, in its appeal ruling dated October 31, 2013 in case No. 33-3566/2013, noted that the negative financial situation of the company (lack of orders) is a financial (commercial) risk in relations between business entities, therefore, it relates to the direct fault of the employer.
Arbitrage practice. The Tula Regional Court in the cassation ruling dated November 10, 2011 in case No. 33-3848 noted that the decrease in demand for manufactured products, the purchase of raw materials at inflated prices, and the decrease in production volumes are the fault of the employer.
Then the question arises: what will relate to the reasons that do not depend on the will of the parties? Let us turn to judicial practice and clarifications of officials. According to them it is:
- issuing orders government bodies(Determination of the Moscow City Court dated July 15, 2010 in case N 4g / 2-5685 / 10);
– extreme weather(See, for example, the recommendations of the Ministry of Health and Social Development on the organization of work and rest regimes in conditions of extreme temperatures and smoke dated 08/06/2010);
- breakdown of the machine tool of the employee who uses it, but is not to blame for its breakdown. For an employee who broke the machine, the reason for the downtime will be his guilty actions (letter of Rostrud dated 05/12/2011 N 1276-6-1).
2. There are no documents confirming the need for downtime
The personnel department must collect the package required documents, which will be a confirmation of the legality of the introduction of downtime.
Arbitrage practice. The Moscow Regional Court, in its ruling dated November 1, 2011 in case No. 33-24455, emphasized that when deciding to establish downtime, the employer must keep in mind that there must be commercial, accounting and other documents confirming the need to declare downtime. Otherwise, the court may find it unreasonable.
3. Downtime not documented
The labor law does not mandatory requirements to the content of the simple documentation. Therefore, the employer decides for himself how best to do it. In any case, you need to issue a demurrage order. By the way, it will be needed by the accounting department to account for expenses for income tax purposes.
Arbitrage practice. Since the amount of payment for downtime depends on the cause of its occurrence, each downtime must be documented, identifying its cause (ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated February 3, 2014 in case N 33-321 / 2014, appeal ruling of Kemerovo regional court dated January 30, 2014 in case No. 33-73-2014).
Based judicial practice The order must include:
- start and end dates. A specific end date may not be indicated if at the time of issuing the order it is impossible to determine the duration of downtime (the labor legislation does not establish deadlines for its introduction);
- Cause of downtime. Here you should indicate the nature of the reason: economic, technological, technical or organizational; describe the specific circumstances leading to the downtime;
- due to whose fault the downtime occurred (employer, employee or for reasons beyond the control of the parties);
- positions (professions), full name employees or the names of the structural divisions of the organization in respect of which the downtime is declared;
- the need for the presence at the workplace of employees in respect of whom a downtime is declared or permission not to go to work (indicating specific full names, positions (professions), structural divisions or the organization as a whole).
Labor legislation also does not impose requirements for documents that are the basis for an order. Depending on the workflow in the organization, these can be:
- service (report) note of the head of the structural unit, whose competence includes the organization or control of the relevant work;
- downtime record sheet. Its form is not legally established. Usually, it contains the date and time of the start and end of downtime, full name. and positions (professions) of employees and reasons for downtime;
- an act of idle time, which is drawn up by the heads of idle structural divisions; it reflects the reasons and duration of downtime, positions (professions) of employees, etc.
By the way, it should be borne in mind that if a downtime actually took place, but the employer, in violation of the law, did not issue an order to announce it and did not pay the downtime in an appropriate way, then this will not prevent the court from ruling in favor of the employee.
Arbitrage practice. The division of the organization did not function due to a shortage of components, and SMS messages were sent to employees, as well as calls were made to Cell Phones that you don't have to go to work. The Lipetsk Regional Court, in its appeal ruling dated 02.10.2013 in case No. 33-2607/2013, agreed with the State Labor Inspectorate, which issued an order obliging the employer to recognize the working hours indicated in the messages as downtime and pay the employees downtime.
4. The downtime order does not specify whether employees should be present at work
The Labor Code of the Russian Federation does not contain a requirement for the mandatory presence of employees at workplaces during downtime. But since the downtime period refers to working time (Part 1, Article 91 of the Labor Code of the Russian Federation), and not to rest time (Article 107 of the Labor Code of the Russian Federation), employees cannot use it at their discretion and leave their jobs. Their absence from work without the permission of the employer can be regarded as absenteeism. However, a downtime order may allow employees to stay away from work. In order to avoid disputes, the order should clearly indicate whether employees are required to be present at the workplace or not.
Arbitrage practice. The Orenburg Regional Court, in an appeal ruling dated 06/27/2013 in case N 33-3812 / 2013, confirmed the legality of the dismissal under subp. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation due to the absence of an employee at the workplace during the downtime.
5. Downtime order issued by an unauthorized person
The order to declare downtime must be signed by the appropriate person (head of the organization or other authorized person). If an order is issued by an unauthorized person, the announcement of downtime may be declared illegal.
Arbitrage practice. As emphasized by the Khabarovsk Regional Court in the appeal ruling of July 20, 2012 in case N 33-4009 / 2012, the director of the organization is not authorized to issue an order for downtime after the introduction of bankruptcy management. In such a situation, only the bankruptcy trustee can do this.
6. Employees were not familiar with the order to establish downtime
Employees for whom downtime is declared must be familiar with the downtime order. In case of refusal to familiarize, an act is drawn up, which is signed by the commission.
7. The employment service is not notified about the downtime associated with the suspension of production
The employer is obliged to notify the employment service of the downtime if it is associated with the suspension of production. At the same time, as Rostrud explained in a letter dated March 19, 2012 N 395-6-1, we are talking about the suspension of production as a whole, and not of individual units or equipment. This must be done within three working days after the decision to suspend production (declaration of downtime) (paragraph 2 of article 25 of the Law of the Russian Federation of 19.04.1991 N 1032-1 "On employment in the Russian Federation"). Since the unified form of the message has not been approved, it can be made in free form.
8. An employee who was declared idle was transferred to another job without his consent
Some employers, referring to Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, they practice the transfer of an employee who has been declared idle to another job without his consent. It should be remembered that such a transfer is allowed only if the downtime is caused by the emergency circumstances listed in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation.
Arbitrage practice. As indicated by the Moscow City Court in the appeal ruling of 06/06/2012 in case N 11-9038, from the analysis of the norms of Art. 72.2 of the Labor Code of the Russian Federation it follows that the transfer of an employee to another position is allowed if the downtime is caused by a natural disaster or technogenic nature, industrial accident, accident at work, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it. Since no such circumstances were established by the court, the employee's transfer was declared illegal.
9. The time sheet for the downtime period is not drawn up or is drawn up incorrectly
According to Art. 91 of the Labor Code of the Russian Federation, working time is the time during which an employee, in accordance with the rules of internal work schedule and the terms of the employment contract must perform labor duties, as well as other periods of time that, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, relate to working time. The employer is obliged to keep a record of the time actually worked by each employee.
On the basis of orders, memos, acts or sheets of idle time, a time sheet is filled out. Can be used unified forms N T-12 or N T-13, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1, which for this should be approved by order for the organization. In the appropriate columns, it is necessary to indicate the alphabetic or numeric idle code (due to the fault of the employer - "RP" or "31", as well as the length of time not worked (in hours, minutes)).
Arbitrage practice. Failure to reflect downtime or its type in the time sheet entails the illegality of the announcement of downtime (appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated February 3, 2014 in case N 33-321 / 2014).
Incorrect indication of the type of downtime (due to the fault of the employer or for reasons beyond the control of the employer) in the time sheet and the corresponding incorrect payment of downtime in the event of a dispute entails additional charging by the court of wages to the employee for downtime (cassation ruling of the Tula Regional Court dated 10.11.2011 in case No. 33-3848).
10. Mistakes made when paying for downtime
Downtime caused by the fault of the employer is paid in the amount of at least 2/3 of the average salary of the employee (part 1 of article 157 of the Labor Code of the Russian Federation).
According to Art. 139 of the Labor Code of the Russian Federation for all cases of determining the size of the average wage (average earnings), a single procedure for its calculation is established. To calculate the average wage, all types of payments provided for by the wage system applied by the relevant employer are taken into account, regardless of the sources of these payments. In any mode of work, the calculation of the average salary of an employee is made on the basis of the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average salary. In this case, the calendar month is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).
Arbitrage practice. The Moscow Regional Court, in its ruling dated January 31, 2012 in case N 33-2350, drew attention to the fact that when establishing the average daily wage, the total amount of payments is not divided by the number 29.4, since it is the average monthly number calendar days and is used solely to determine the average daily earnings for vacation pay and compensation for unused vacation.
If the employer incorrectly determined the type of downtime (for example, he indicated downtime for reasons beyond the control of the employer and the employee, while in fact the downtime took place through the fault of the employer), then the court will correct it, while accruing additional payment for downtime (appeal ruling of the Vladimir Regional Court dated 31.10 .2013 in case N 33-3566/2013). That is why it is so important to determine the type of downtime correctly.
By the way, payments in favor of employees for downtime are not compensatory in terms of the terminology of the Labor Code of the Russian Federation (Article 164) and are subject to personal income tax on the basis of paragraph 1 of Art. 210, Art. 217 of the Tax Code of the Russian Federation.
11. The employee is forcibly sent on unpaid leave for the downtime
From Art. 128 of the Labor Code of the Russian Federation, it follows that leave without pay is divided into those that the employer can provide to the employee, and those that he is obliged to provide. But both in the first and in the second cases, the basis for granting such leave is the initiative of the employee and his voluntary will. The possibility of sending an employee on leave without pay at the initiative of the employer, albeit on the basis of the employee’s application, but due to circumstances that are related to the activities of the employer company, labor law not provided.
On June 27, 1996, the Ministry of Labor of the Russian Federation issued clarification No. 6 "On leave without pay at the initiative of the employer", in which it indicated that such leaves can only be granted at the request of employees at family circumstances and others good reasons. "Forced" leave without pay at the initiative of the employer labor legislation is not provided.
12. The employee is paid for downtime if he falls ill during this period
The question of whether to pay for downtime if an employee falls ill has led to much controversy until recently. Specialists of the FSS of Russia believed that the benefit should not be accrued if the employee fell ill during the idle period (letter dated 03.22.2010 N 02-03-13 / 08-2497). However, the courts took a different view.
Arbitrage practice. The Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of May 18, 2010 N 17762/09 indicated that the legislation in force at that time did not establish the dependence of the payment of benefits on when the employee fell ill (before the downtime or after).
Interestingly, the point of view of the courts did not find support among legislators. On January 1, 2011, Federal Law No. 255-FZ of December 29, 2006 "On Compulsory Social Insurance in Case of Temporary Disability Due to Motherhood" (hereinafter - Law No. 255-FZ) was amended. According to new edition Part 7 Art. 7 of Law N 255-FZ, a temporary disability certificate is paid only if the employee’s illness occurred before the organization declared idle time.
Arbitrage practice. The ruling of the Constitutional Court of the Russian Federation of January 17, 2012 N 8-О-О "At the request of the Livoberezhny District Court of the city of Lipetsk to verify the constitutionality of clause 5 of part 1 of Article 9 of the Federal Law" On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood" states : clause 5, part 1, article 9 of Law N 255-FZ, which excludes the appointment of an insured person for the period of downtime for temporary disability benefits that occurred during the downtime, is due to the intended purpose of this type of insurance coverage and in systemic connection with article 157 of the Labor Code of the Russian Federation cannot be considered as violating the constitutional rights of citizens.
13. Downtime announced simultaneously with the reduction without objective reasons
In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, when terminating an employment contract due to a reduction in the number or staff, the employer is obliged to notify the employees in writing against a personal signature at least two months before the dismissal. At the same time, from the date of notice of dismissal until the day of termination of the employment contract, the essence employment relationship between employee and employer does not change. The employer is obliged to provide the employee with work according to the stipulated labor function, pay wages in a timely manner and in full, etc.
Simple in meaning Art. 72.2 of the Labor Code of the Russian Federation is a temporary measure in connection with the occurrence of certain circumstances that do not entail a decrease in the number of employees and termination of the employment contract. As we have repeatedly stated, the employer must have objective circumstances (of an economic, technological, technical or organizational nature) to issue an order for downtime in the organization (individual divisions of the organization).
Thus, carrying out measures to reduce the number or staff of the organization's employees and notifying them of the upcoming
Dismissals do not constitute downtime in the sense in which this term
Used in part 3 of Art. 72.2 of the Labor Code of the Russian Federation. If there are objective circumstances that caused the downtime, and the employer issued an appropriate downtime order, then employees who were warned about dismissal due to a reduction in the number or staff may also be in downtime (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).
In the event of a dispute, the courts evaluate the circumstances that led to the downtime and find out whether it was caused by a temporary suspension of work.
Arbitrage practice. The Kemerovo Regional Court, in an appeal ruling dated January 30, 2014 in case No. 33-73-2014, confirmed the legality of the announcement of downtime during the period of notification of staff reductions, and indicated that the plaintiff was sent to downtime not because his position was subject to reduction, but due to reasons of an economic nature, about which the appropriate orders were issued by the employer.
Arbitrage practice. In turn, the Murmansk Regional Court, in its appeal ruling dated March 5, 2014 N 33-377-2014, pointed out the illegality of the announcement of downtime, since the issuance of the downtime order in relation to the plaintiffs was not caused by a temporary suspension of work. The lack of work for the plaintiffs was of a permanent nature, without having signs of its temporary suspension.
14. An order to end the downtime has not been issued (in the absence of an end date for the downtime in the order)
If a specific end date was indicated in the order to declare downtime (for example, "declare downtime from 08/07/2014 to 08/18/2014"), then the action this order stops automatically. If the order to declare downtime was issued with an open date (that is, at the time of its issuance it was impossible to determine the duration of the downtime), then the employer must issue an order to end the downtime, in which to indicate:
- the date from which work resumes;
- positions (professions), full name employees (employee) or the names of structural units (subdivisions) of the organization that start work after downtime.
AT without fail employees of the relevant departments should be familiarized with the order under a personal signature. This will help to avoid controversial situations when employees did not show up for work and claim that the employer did not notify them of the end of downtime.
Labor legislation allows demurrage to be declared to employees through the fault of the employer. This procedure was supposed to give the latter the opportunity, under adverse circumstances, to suspend work processes and pay staff only 2/3 of the average salary. However, employers often use this opportunity not for objective reasons, but wanting to exclude an objectionable or unnecessary employee from the company's business processes. In this case, employees do not always agree with such a formulation of the question, because the announcement of downtime can be one of the steps taken by the employer in order to force the employee to quit. The law and the established practice of its application indicate that the will of the employer in itself to declare downtime due to his own fault is not enough.
Judicial practice pays attention to the fact that the employer has real circumstances that caused the announcement of downtime. Let us turn to the decisions of the courts, which will allow us to draw conclusions about the risks of the employer in the event of an announcement of downtime on his initiative.
Legislative regulation of downtime due to the fault of the employer
To begin with, let's figure out what the essence of such a legal instrument as declaring downtime due to the fault of the employer. In the Labor Code of the Russian Federation, frankly, the provisions on downtime are very scarce; a separate article is not devoted to it. Downtime is defined in Art. 72.2 "Temporary transfer to another job" of the Labor Code of the Russian Federation. In accordance with it, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.
As follows from Art. 157 of the Labor Code of the Russian Federation, downtime arises through the fault of the employer, through the fault of the employee, and also for reasons beyond the control of the parties. It is on the factor of guilt and its subject that the payment for downtime depends: in the case of the fault of the employer or if the reasons do not depend on the will of the parties, downtime is paid at the rate of 2/3 of the average salary of the employee. In the presence of the fault of the employee, downtime is not paid.
However, the Labor Code of the Russian Federation does not contain the concept of guilt. Obviously, in this situation it will have to be borrowed from other branches of legislation.
In this context, we are interested in downtime due to the fault of the employer. When is she present? In accordance with Part 2 of Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to provide the employee with work stipulated by the employment contract, equipment, tools, workplace, equipment, etc., necessary for the implementation of the labor function. And such circumstances, such as, for example, non-payments of counterparties, lack of orders, etc., belong to the category of entrepreneurial risks, and these risks lie entirely with the employer, shifting them to the employee is unacceptable.
But interestingly, even if the employer announces downtime through his own fault, he should still do this only if there are objective reasons. After all, the payment of 2/3 of the average wage and the lack of the opportunity to work is in any case Negative consequences for an employee, which the employer does not have the right to create without objective reasons, only at his own discretion.
As for the procedural issues of introducing downtime due to the fault of the employer, there is also a gap in regulation. Obviously, the employee must be notified of the reasons, the beginning and the period of downtime, and before the start of the downtime or directly on the day of the start. The most logical way to do this is to issue an appropriate order. It also begs the question, should the employee be present at work during downtime? Since, in accordance with Art. 107 of the Labor Code of the Russian Federation, downtime does not apply to rest time, then the employee should be present at the workplace in readiness to start work at the end of the downtime. However, if the presence of the employee during this period is not required or, moreover, it is undesirable, this must be indicated in the downtime order.
As follows from practice, in fact this is what happens.
The question also arises: should the announcement of downtime be limited to a specific period of time? Here again, no specifics can be found in the law. If the downtime is caused by such reasons as the re-equipment of the enterprise, etc., then its period can be quite predicted and indicated in the order. If it is difficult to determine the duration of downtime in advance, you can declare it, for example, for a month, and then issue an order to extend it. If the reasons for declaring downtime disappear earlier, nothing prevents you from issuing an order to terminate it and invite the employee to familiarize yourself and then go to work. You can issue an order with an open date for the end of downtime, indicating, for example, "until the end of the reasons for declaring downtime."
Judicial practice on the reasons for declaring downtime due to the fault of the employer
Simple as coercion to quit
The employer declared the employee downtime, forcing her to make a decision to dismiss (The cassation ruling of the St. Petersburg City Court dated May 25, 2011 N 33-7694).
The situation when an employer offers an employee who does not suit him to quit, even if there are no obvious legal grounds for this, happens very often. In this case, the employer may apply various methods of pressure on the employee, trying to put them in a legal form.
In the example under consideration, the plaintiff, without really existing reasons, was declared idle time with the preservation of 2/3 of the average earnings. She was allowed not to attend the workplace, and her pass was blocked from the date the downtime began. As a result, the plaintiff resigned by agreement of the parties, and then went to court with various demands, including the invalidation of the demurrage order and the recovery of underpaid amounts.
The Court of Cassation concluded that the employee was unlawfully suspended from work - both by a downtime order and actually not allowed to work - and deprived of the opportunity to work. Accordingly, on the basis of Art. 234 of the Labor Code of the Russian Federation for the period of illegal downtime, she had to pay not 2/3 of the average earnings, but average earnings fully.
Idle time until reduction due to lack of confidence
The employee was sent on a downtime up to a reduction in order to prevent him from information systems in a situation of acute distrust on the part of the employer (Appeal ruling of the Moscow City Court dated July 16, 2014 in case No. 33-28011 / 14).
A real confrontation unfolded between the head of the IT department and his employer, during which the employer also used such a method of struggle as declaring downtime. The plaintiff subsequently challenged the legality of the layoff order.
It all started with the fact that the employer issued an order on the upcoming reduction of some positions and departments in the company, including the position of director of information technology. By the same order, the director of the IT service was instructed to transfer all information on access and work in IT systems for the purpose of auditing, and it was also forbidden to access the company's IT systems. However, a violation of this order by an employee was recorded, after which he was declared idle with an "open" date - until further notice CEO- and ordered not to go to work. At this time, the company carried out an audit of IT systems with the help of a contracted organization. However, upon completion of the audit, the plaintiff was not allowed to work, idle time lasted until the reduction of his position and was paid at the rate of 2/3 of the plaintiff's average earnings.
The court, recognizing the announcement of idle time to an employee as illegal, cited the following arguments. So, the defendant had no legal grounds for introducing a downtime in relation to the plaintiff, since, by virtue of the provisions of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. No such reasons have been established. The court took into account that the descriptive and evaluative formulation of the reasons that caused the downtime, set out in the Labor Code of the Russian Federation, indicates a variety of circumstances that can cause the suspension of activities, which makes it impossible to establish an exhaustive list of them in the law, but may be the subject of an assessment by the court considering the labor dispute. But in any case, simple as a legal fact is a temporary event, and the employer, by virtue of Art. Art. 22, 56 of the Labor Code of the Russian Federation is obliged to take all measures in its power to stop downtime and provide the employee with the opportunity to perform labor duties stipulated by the employment contract.
However, the plaintiff was actually suspended by the employer from performing a labor function, up to and including dismissal. The employer has not proven that it is impossible to provide him with work in his position for the period of the audit of IT systems. And even after the end of the audit, the company did not stop the downtime in relation to the plaintiff, thereby the employer did not provide the employee with the opportunity to perform labor duties, and the latter was illegally deprived of the opportunity to work. Thus, in view of the groundlessness and illegality of downtime, the court recovered in favor of the employee the difference between the payment for downtime and his average earnings for the period of illegal downtime.
Downtime on the eve of liquidation
The employees failed to recognize the downtime declared by them as illegal, since the employer was about to be liquidated (Appeal ruling of the Moscow City Court of 07/02/2013 in case N 11-20513 / 2013).
A group of employees of 4 people filed a lawsuit to declare the downtime declared illegal and to pay them unpaid earnings for the time of downtime. The situation in which they were declared idle was as follows. The employer notified the employees of their impending dismissal due to the liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation). Employees were declared downtime, with which they did not agree.
However, the court accepted the position of the employer on the legal introduction of downtime in relation to employees. Thus, the orders for its announcement contained the following wording: "due to organizational reasons, expressed in a change organizational structure LLC, the lack of work for certain positions established by the staffing table, with payment for downtime, the release of employees from the obligation to visit the office. to the Interdistrict IFTS of Russia N 46 for the city of Moscow on the liquidation of the LLC, on the basis of which information was entered into the Unified State Register of Legal Entities on the beginning of the liquidation.
Thus, the court concluded that the employer had a legitimate reason to declare downtime, since there were reasons of an economic and organizational nature in connection with the difficult financial and economic situation of the company and its upcoming liquidation. Under such circumstances, the workers had no reason to consider downtime illegal.
Reduction of position as a reason for downtime
The upcoming layoffs are not a reason to announce downtime. This conclusion was made by the Samara Regional Court in the Ruling of March 15, 2011 N 33-2390.
So, at the enterprise where the plaintiff worked, there were organizational changes: the work that he performed was transferred to another division, where the same positions were introduced as his. With regard to the position of the plaintiff, it was decided to reduce it, he was offered vacancies. The plaintiff initially agreed to the transfer, but then refused. After that, he was declared idle, which the plaintiff disputed. The court of cassation recognized the removal of an employee from idle time as illegal for the following reasons.
As noted above, by virtue of Art. 72.2 of the Labor Code of the Russian Federation, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.
However, it was found that the amount of work performed by the repairmen - colleagues of the plaintiff, did not change, this work continue to perform the same number of locksmiths, but transferred to another unit due to changes in staffing. Despite the organizational changes that have taken place, the plaintiff's labor function has not gone away, there was an opportunity to provide him with a job.
Thus, he was actually suspended from work, since the employer had the opportunity to provide him with work with the payment of an appropriate salary. The consent of the employee to the transfer and the subsequent refusal of it cannot serve as a basis for withdrawing the plaintiff into downtime.
In addition, the commencement of the dismissal procedure for downsizing in relation to the plaintiff is also not a basis for layoffs, since such a procedure for dismissal is not provided for by labor legislation. Accordingly, the order to take the employee out of service was declared illegal, and the enterprise was charged with unpaid wages for the period of downtime.
A similar case is described in the Appellate ruling of the Samara Regional Court dated April 15, 2015 in case No. 33-4065/2015. Due to the fact that the enterprise that served Russian Railways had completed the program for the supply of components and there were no applications for new supplies, the plaintiff was declared idle, and then a notification of the upcoming procedure for reducing his position followed. The plaintiff was not satisfied with the situation when he was deprived of the opportunity to work, receive full wages and, without his consent, he was paid for downtime in the amount of 2/3 of the average earnings.
Of interest in this case is also how the court interprets the concept of idle time and expresses its opinion on its introduction for the period preceding the reduction of the position. He points out that the use of the concept of "idle" is associated with extraordinary circumstances that do not allow the employer to ensure the work of the organization. The plaintiff was suspended from performing the labor function with reference to the insufficient amount of work, the decrease in the volume of orders. At the same time, during the period of downtime, the work that he was supposed to carry out in accordance with his official duties was performed by other employees of the organization.
The court concluded that in this case there was actually no downtime, and the plaintiff's failure to fulfill his labor duties was due to the fault of the employer, who, in violation of Art. Art. 15, 16 of the Labor Code of the Russian Federation did not fulfill its obligation to provide the employee with work in accordance with the labor function performed by him. Therefore, the plaintiff's work should be paid in the amount not lower than the average wage in accordance with Part 1 of Art. 155 of the Labor Code of the Russian Federation.
The following remark of the court is also interesting: the employer in this case was obliged to conclude an agreement with the employee on changing certain parties the terms of the employment contract in writing. However, such an agreement between the parties was not concluded, in connection with which the payment of the plaintiff in the amount of 2/3 of the average wage in accordance with Art. 157 of the Labor Code of the Russian Federation is unreasonable.
Also, downtime orders were taken by the employer in relation to the plaintiff during the period of his notice of impending dismissal, while the holding of organizational and staffing events in the defendant's company during the period of notice of dismissal to reduce the size or staff of the organization cannot be the basis for remuneration of the employee in the amount 2/3 of the average salary. The issuance of a downtime order during this period should be caused by a temporary suspension of work. If, due to downsizing, the possibility of stopping downtime by the employer is not expected, then there are no signs of a temporary suspension of work.
Downtime was announced not in order to provide the employee with the opportunity to actually perform labor duties in the previous or other position, but was due to the notice period for the upcoming dismissal.
According to these arguments, the employer's downtime orders were invalidated and the employee was charged with unpaid wages.
As can be seen from the norms of the Labor Code of the Russian Federation on downtime and the above examples of judicial practice, downtime is a kind of economic instrument designed to protect the interests of both the employer and the employee in the event that the employer, for objective reasons, cannot conduct his business activities in the usual manner.
In a normal situation, when the reasons for downtime are real and objective, the interests of the employee and the employer are balanced as follows: the employee receives a kind of compensation of at least 2/3 of the average earnings for unfavorable circumstances in the form of unemployment, and the employer gets the opportunity to save cash and not to pay wages in full for the forced inactivity of the employee. The courts in their arguments emphasize that downtime should be motivated by reasons of an extraordinary nature, and not just by the desire of the employer. As we can see from the above examples, the court only in the situation of liquidation of the company considered it reasonable to introduce downtime in relation to employees precisely because the liquidation is an extraordinary situation and caused by objective reasons: the decision of the founder legal entity and profitability of the company.
In the event that downtime is introduced solely at the request of the employer, in order to save on wages and remove "harmful" employees from the company's resources, the employee's interests are infringed - he is deprived of the right to work and the right to full pay for his labor. This case can be called an unfair application of the downtime procedure.
The main signs of dishonesty of the employer when declaring idle time to the employee are the following:
1) the absence of a stop to business processes in which an employee who has been put on idle is involved;
2) fulfillment of the duties of an "idle" employee by his colleagues;
3) introduction of a downtime procedure for the period ahead of layoffs;
4) preventing the employee from reaching the workplace and other resources of the company, if any conflict situation between employee and employer.
Thus, when deciding on the introduction of a downtime procedure due to the fault of the employer, the latter should take into account the following recommendations:
1) downtime can be introduced only if there are objective reasons not determined by the will of the employer that do not allow the employee to fulfill his labor function: suspension of business processes in which the employee is involved, liquidation, bankruptcy of the company, etc.;
2) if it is planned to transfer the duties of an idle employee to his colleagues or to another unit, it is impossible to introduce idle time, since in this case the employer has the opportunity to provide the employee with work (which is, by virtue of Article 22 of the Labor Code of the Russian Federation, the obligation of the employer);
3) it is impossible to motivate the introduction of downtime by the upcoming reduction in the number or staff in relation to the employee, if it is possible to provide him with work for the period preceding the reduction.
In conclusion, we add that the main risk of unreasonable introduction of downtime is its challenge by the employee in court and the recovery of the amounts "saved" by the employer, as well as legal costs and compensation for moral damage.
Failure by an employee to perform their job duties usually implies penalties from the employer. After all, who does not work, he may not count on remuneration. But there are times when an employee simply cannot do the job, and this happened because of the employer. The conditions for such a break vary, but in all such situations, the employee is entitled to compensation.
Peculiarities. In what cases can it occur
Forced downtime is a certain period of time during which the employee cannot fulfill his duties prescribed in the employment contract. The problems that led to this situation may vary, as well as their culprits.
Exists several reasons for such pauses in work:
- Economic kind. For example, the firm has no orders. Although this reason can be attributed to economic situation in the country and considered external, judges usually consider it as the direct fault of the entrepreneur. After all, the manager is obliged to correctly calculate financial risks. Therefore, if there are any circumstances that justify the employer, he will be obliged to prove this in court - which, however, does not relieve him of the need to compensate employees for wasted time.
- of a technical nature. Here the range of potential culprits is much wider. If the manager deliberately delays the process of completing the task, the fault for the pause lies with him. If an employee breaks the only equipment suitable for the job until a new one is purchased and delivered / installed, he is responsible for the pause in work. External reasons can also play a role: for example, the materials necessary for repairs did not arrive. Outside deliveries depend on the logistics of another company, so a third party is responsible for downtime.
- organizational nature. A good example is strikes. People who did not join the rally are still unable to do their job. The legality of the protests plays a big role: if everything is legitimate, the manager is to blame. If not, no one. It also depends on the amount of compensation and whether it needs to be paid at all.
Without a trial, all the nuances of downtime often cannot be resolved. After all, in Labor Code There is no clear list of situations in the Russian Federation that can be unambiguously classified as simple due to someone else's fault. The proceedings must establish the nature of the break in work and whether one of the parties to the employment contract is responsible for it. This directly affects the payment for a pause in work.
You should also not confuse simple and flawed. At the first employee does not work at all. With a defect, a person does not “fit” into the schedule of the required number of shifts, but he fulfills his duties.
How to make a simple one: step by step instructions
To get started, you need to clearly determine the reasons for the pause in work and in the future, all documents are drawn up based on their justification. In this case, the documentation of the institution will greatly help, with the help of which the fact of the suspension of activities will be obvious. For example, the accounting department is obliged to record a change in income, a shortage of certain materials for work. The employer must collect and carefully study all invoices, memos and other similar acts.
In the Labor Code of the Russian Federation, the process of registering a break in work is not prescribed, therefore, further steps are described based on numerous litigations.
Step one. We write in a formal business format downtime order. There is no clear form, so the text of the order is drawn up by each manager personally. What should be included in the document:
- specific date and exact time of the beginning of the break in work;
- it is also desirable to determine the date of its end, although the employer does not always have this information - for example, if there is a need to clarify the circumstances of a pause in work. Then a phrase is introduced into the contract that the break will end when the event N occurs;
- for what reason there was a downtime and who is responsible for it;
- depending on the nature of downtime, it can be introduced either for one / several departments of the enterprise, or for the entire organization. In both cases, the employer is obliged to list by name each employee who will be affected by a break in work, indicating their positions. Also separately write down the names of departments (workshops, offices, etc.) that will be idle;
- reference or quote from Article 157 of the Labor Code of the Russian Federation, in the part that describes the payment procedure for a specific downtime culprit;
- if the manager decides that his employees may not be present at the workplace during a pause in the performance of duties, this must necessarily be reflected in the order. If this clause is not present, employees cannot leave their places or not come to work.
This rule is due to the fact that a pause in work is not equivalent to rest. That is, although the worker has nothing to do, he still has to visit the place of work, unless the manager seems to have a better deal.
All employees affected by this situation are required to put their signature on the order, thereby confirming that they have read the document.
Step two. It should only be done if the employer completely freezes the activity of the enterprise. In this case, you need to notify the employment service. After the start of the pause in work, the manager has three working days to write this notice and send it to the desired address. There is also no clearly defined form of the document.
Step three. Filling out the time sheet. The time in the timesheet is calculated to the nearest minute. Depending on the reason for the downtime, you need to specify a special code.
Examples of documents for registration
A downtime order can be issued as follows:
An example of an explanatory note for downtime due to the fault of the employee:
How is forced downtime paid?
Maximum payment amounts are not limited, the employer has the right to set them according to own will . The legislation provides only minimum requirements to compensation, payment below this bar will be illegal.
Downtime due to the fault of the employee is not subject to compensation. In such cases, we are most likely talking about disciplinary offenses, so the entrepreneur can additionally punish the employee for a pause in work - for example, reprimand him with entry in a personal file, or deprive him of the bonus.
Idle time due to the fault of the employer at least two-thirds of the employee's average salary is paid.
Downtime for other reasons that come from outside and are not dependent on the parties to the employment contract is paid in the amount of 2/3 of the tariff rate or salary of the employee, calculated in proportion to the time of the break in work.
What should an employee do during this time?
If the employer did not send the employee home, he has the right to offer the employee to temporarily perform other official duties
. This requires the written consent of the employee, as well as proper execution his temporary transfer, fixed by a special act.
In this case, for the work done the employee must be paid the full amount of wages, received by people who perform the same duties in the organization.
Transfer to a less qualified job (respectively, with a lower wage) is prohibited.
Sometimes workers may also carry out their previous work duties in another area. In this case, the employer does two things: draws up an act on the movement of the employee and stops the downtime in relation to him. This method is only appropriate if the person’s labor duties do not change at the new work site.
If a the employee does not agree to the transfer, he still has the right to visit workplace and do nothing there.
Among entrepreneurs, there the practice of sending subordinates on business trips during their downtime. This is not prohibited by law, but then you need to pay not for a pause in work, but for a business trip.
Particularly bored employees can clean up the office, but this is an exclusively personal impulse of their soul, so they are not entitled to demand for such payment. Office cleaning is the job of a cleaning lady who is paid to do it. The employer cannot force the workers to clean up, "since they are not busy anyway."
In general, every employee should be aware that during legal downtime, he has every right not to work and not agree to temporary transfers for other positions. Everyone decides for himself how to diversify his activities in the workplace when there is no direct work. The main thing is not to interfere with other employees to perform their duties.
Video contains Additional information on staff reduction, registration of idle time of the company.