To provide an employee with leave, including for previous years, it should be provided for in the vacation schedule, which is mandatory for the employee.
Rationale:
Based on Art. 114 of the Labor Code of the Russian Federation, each employee is granted annual paid leave. Vacation is granted at any time of the working year in accordance with the priority established by this employer(part 4 of article 122 of the Labor Code of the Russian Federation).
According to Part 1 of Art. 123 of the Labor Code of the Russian Federation, the order in which vacations are granted is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year. With the exception of certain cases of granting leave at the request of the employee (part 4 of article 123 of the Labor Code of the Russian Federation) according to general rule vacation schedule is mandatory for both the employee and the employer.
However, the transfer of annual leave is allowed with the consent of the employee, including in the case when the provision of leave to the employee in the current working year may adversely affect the normal course of the employer's work (part 3 of article 124 of the Labor Code of the Russian Federation). At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted; failure to provide annual paid leave for two consecutive years is prohibited.
It should be remembered that vacation days not used by the employee do not “burn out”. In Letter No. 1921-6 of 08.06.2007 of Rostrud, it is explained that if an employee has not used annual leave for previous working periods, he retains the right to use all due annual paid holidays.
According to the position of Rostrud, set out in Letter No. 473-6-0 dated March 1, 2007, the unused days of annual leave for previous working years by the employee can be provided either as part of the vacation schedule for the next calendar year, or by agreement between the employee and the employer.
The vacation schedule is a local regulation. To compile it, you can use the unified form No. T-7 (approved by the Decree of the State Statistics Committee of 01/05/2004 No. 1) or develop your own form containing all required details primary accounting document (clauses 2, 4, article 9 federal law dated December 6, 2011 No. 402-FZ “On Accounting”).
The employer is obliged to familiarize the employees against the signature with the accepted local regulations directly related to their labor activity. In this regard, the approved vacation schedule is brought to the attention of all employees. In addition, each employee must be notified against the signature of the vacation no later than 2 weeks before it starts (part 3 of article 123 of the Labor Code of the Russian Federation, paragraph 4 of the Letter of Rostrud dated 03/22/2012 No. 428-6-1).
The current Russian legislation does not establish the obligation of the employer to take into account the wishes of employees when drawing up the vacation schedule. However, one should keep in mind the provisions of the Convention No. 132 of the International Labor Organization “On paid holidays” (concluded in Geneva on 06/24/1970), art. 10 of which provides that the time of granting leave, if it is not established normative documents, collective agreement, arbitration award or other means consistent with national practice, is determined by the employer after consultation with the employee or his representatives. When determining the time of granting leave, the need of the enterprise for labor force and the opportunities for recreation available to the employee should be taken into account.
In addition, it should be borne in mind that for certain categories of employees, the obligation of the employer to take into account their wishes about the vacation period has been established, for example, employees under the age of 18, employees who have adopted a child (children) under the age of 3 months, spouses of military personnel, etc.
Thus, in order to provide the employee with unused vacation days for previous working periods, it is necessary to include periods of unused vacation in the vacation schedule, with which the employee must be familiarized. If the vacation schedule for the year has already been approved, it can be amended based on the order of the head of the organization to grant vacation. Not later than 2 weeks before the start of the vacation, the employee should be notified against signature. Not later than 3 days before it starts, it is necessary to pay the employee a vacation (part 9 of article 136 of the Labor Code of the Russian Federation).
Also, the employer should keep in mind that in accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor legislation entails the imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles; on the legal entities- from thirty thousand to fifty thousand rubles.
Please note that the law may have changed. The opinion of the expert is based on the provisions of the legislation in force on the date of preparation of the consultation
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Many employees large companies offered to extend the November holidays by taking holidays at their own expense. Such a move is illegal. How to deal with such violation Labor Code?By law, you can take a few days off without pay only for own initiative. Registration of leave at one's own expense occurs only on the basis of a personal application of the employee. Most likely, the personnel of the above companies were ordered by order to sign leave applications, and people did this in order to keep their jobs. During a crisis, there are few hunters to swear and conflict with superiors. If the employee signed an application for leave, then it will be problematic to challenge its legality in court. In our country, it is very difficult to prove the fact of coercion to action. To do this, the employee must have evidence of pressure from management. They may be the testimony of witnesses, audio and video recordings of conversations, mail correspondence with the personnel department or the person who forced the employee to sign the application.
In addition to the court, the labor inspectorate operating at the place of registration of the company can help the employee. Based on your application, the inspectorate has the right to conduct an inspection, ask for written explanations from your employer, and interview the witnesses you indicate in the application. Based on the results of the audit, a decision can be made to bring to administrative responsibility and an order to eliminate violations of labor laws. In this case, the employer will be required to pay serious fines. But keep in mind: even if the results of the check are positive and the inspection establishes the fact of a violation, you will not be returned the unpaid money. Once you signed an application for a vacation at your own expense, you can no longer apply for them. Contacting labor inspection can be very effective. The management of your company understands that by ordering employees on vacation at their own expense, they take a big risk. Penalties for such violations can be very painful for the employer.
Therefore, you have the opportunity to defend your position by simply threatening your boss that you will contact the inspection. It is likely that they will try to negotiate with you. Perhaps they will offer an alternative way out of the situation, they may ask not to disclose your agreement with the authorities to other employees. In this case, your further career in the company depends only on how you behave. You will not comply with the agreements - the employer will always find a way to get rid of you. There is another opportunity to defend your rights - not to sign an application for a vacation. They will not be able to fire you for this fact, but in this case you will not contact the labor inspectorate, since there was no fact of violation of your rights. Another thing is that the employer always has other powerful levers of influence on subordinates. For example, the reduction of bonuses is no secret that in many companies its size exceeds the salary by several times.
The employee has an unused vacation balance of 38 k.d. for 2000-2001. For subsequent years, leave is strictly according to the schedule of 28 k.d. How to force an employee to take these days off right now?
Answer
Answer to the question:
Unfortunately, in your circumstances, the employer has no legal grounds to force the employee to take time off unused vacation.
In a situation where there are no objective reasons for another period, the employee is obliged to use the leave within the period specified in the schedule. At the same time, the employer is obliged to notify the employee in writing of the upcoming vacation no later than two weeks and pay vacation pay no later than three days before the start of the vacation (, Labor Code of the Russian Federation).
Refusal by an employee to use scheduled leave in the absence of good reasons may be regarded as a breach labor discipline, which means that the employer can involve the employee in ().
Nina Kovyazina, Deputy Director of the Department of Medical Education and personnel policy in health care of the Ministry of Health of Russia
With respect and wishes for comfortable work, Igor Ivannikov,
Expert Systems Personnel
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Every employee has the right to annual paid leave, which is established by law. Alas, but that point is considered one of the most violated. Basically, employees complain that due to the employer's savings on positions they need to work for two and not take a vacation for a very long time.
If the employer refuses to give you leave, then its action can be challenged in court. But there are other conditions when the worker does not want to go on vacation.
Can an employer force an employee to take a rest in such a situation? In this article, we will talk about situations when the employer begins to force employees to go on vacation.
Legality and vacation rules
To answer this question, it is necessary to find out what is meant by annual leave, an annual vacation is a time of rest. Rest, which the employee is entitled to receive every year.
Annual leave must be at least 28 days.
An order must also be written, with which the employee must familiarize himself and put his signature. 3 days before the vacation, vacation pay must be paid to the employee.
Also, if for some reason the vacation schedule was not drawn up, then all of the above rules must be observed. 
It happens that an employer can send an employee on a long unpaid leave.
This happens when an organization finds itself in a financial shortfall. To save money, employers offer employees unpaid leave.
Workers are at a huge disadvantage. They do not receive pay for unforeseen leave and they also become unemployed. This is a violation of workers' rights.
According to the law, if an employee is fired due to a reduction in staff, then he must be warned 2 months in advance. During this period, he is obliged to accrue the entire salary that he has earned and all compensation.
If the employee did not write a statement that he was asking for leave without pay, then this situation is no longer calculated as a vacation, but as a downtime due to the fault of the employer, who, in accordance with the law of Art. 72.2 of the Labor Code of the Russian Federation is paid in the amount of not less than 2/3 of the salary.
What should an employee who does not want to go on vacation do?
There are cases when an employee does not want to get acquainted with a document about an upcoming vacation or with a decree on its provision, an act of disagreement is drawn up by a representative of the employer. Witnesses must sign it.
Such actions can be calculated as a violation of labor discipline, as a result of which a penalty will be imposed on him.
When an organization or individual entrepreneur does not enter the best band, she does her best to reduce her expenses in various ways. Including, and send on their own initiative the working staff on forced leave. Then the problem arises whether such rest is paid and to what extent. The answer depends on what the forced production pause was connected with.
Voluntary-compulsory
A particularly unscrupulous employer could, in principle, offer his staff to go on unpaid leave for own will. However, everyone should be aware that, in accordance with Art. 128 of the Labor Code of the Russian Federation, this type of vacation can be provided to an employee only on his own statement on family circumstances or other good reasons. Therefore, the presence of an employee’s handwritten statement indicating and explaining personal good reasons in it is the only impetus for such a vacation.
Unfortunately, the law does not provide for the possibility of sending on unpaid leave, although on the basis of the employee’s own application, but due to circumstances related to the employer’s distress or other difficult situation.
If the management in every possible way leads the subordinate to write such a statement, he has every right to apply to the labor inspectorate, to the prosecutor's office and even to the court.
It was in this vein that the Ministry of Labor of Russia explained this issue in clarification No. 6 of June 27, 1996 "On leave without pay at the initiative of the employer." It can be read in the document that such holidays can be given only at the will of subordinates. There are no forced vacations at the initiative of the employer without pay and are not provided for by law.
How much to pay under the rules of forced downtime
Let's look at the situation from a slightly different angle. If an organization is unable to provide its employees with work and they cannot fulfill their production duties due to the fault of the employer, she is obliged to pay them a period of forced downtime. If the employer ignores this obligation and payment is not received, the employees of the enterprise also have the full right to initiate the creation of a commission for labor dispute. And, in the end, go to court.
Read also What kind additional holidays rely on working pensioners?
The amount of guaranteed payment for the downtime period is clearly stated in Art. 157 of the Labor Code of the Russian Federation. Employees must receive at least 2/3 of their average wages including all allowances, surcharges and bonuses to salary.
Keep in mind: the team must be at their workplaces during the entire time of the production break. This should also be reflected in the time sheet: you need to put down the working days.
The employer is not obliged to inform the employee about the duration of the forced downtime. If only because in many cases it is impossible for objective reasons. As soon as the situation for the organization changes for the better, the employer can interrupt the forced downtime at any time and notify employees of the need to resume their work duties.
Payment rules
If an organization has taken a production break, employees are still bound by an employment contract with it, maintain working relationships and fully expect to receive salaries for this period.
Downtime can occur due to several reasons (see table).
Please note: the table shows minimum requirements law. But in a collective employment contract a higher payment for this period may also be negotiated.
Let's consider other situations.
Hint of annual leave
The employer may offer his employee to take another annual leave during the forced downtime. But the subordinate must remember that the vacation schedule is usually drawn up in advance (in December), taking into account the wishes of the workers. Therefore, if an employee has a different period in the vacation schedule for going on an annual vacation, the employer cannot force him to take such a vacation for another time. This issue can only be resolved by mutual agreement.
Downsizing
If the crisis situation drags on, the employer may try to decide to reduce the staff. In this case, he must comply with all the rules established by law:
- warn subordinates two months before the reduction;
- immediately pay all due income and compensation;
- send information to the employment service.