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02.03.2020

Many workers mistakenly believe that if they are constantly late at work, and their working day does not have a clear schedule, then it can be called irregular. In terms of meaning, it is possible, but according to the law, it will be considered as such if a corresponding entry is made in the employee’s employment contract, and with it additional social guarantees appear that are due to employees with an official irregular day. Let's figure out what an irregular worker means in 2019 according to the Labor Code of the Russian Federation. Changes and updates later in the article.

Flexible working hours, overtime work, as well as banal overtime at the will or whim of the employer have little in common with an irregular workday. In accordance with Art. 101 of the Labor Code of the Russian Federation, which contains the corresponding concept, an irregular working day is a special mode of work when an employee remains to work after labor day not all the time, as is often the case Russian enterprises, but occasionally on the verbal command of the employer. Not any employee can leave “after work”, but only the one who occupies a position that, in accordance with collective agreement or other regulatory act of the employer is included in the list of positions with irregular working hours.

Flexible hours, irregular hours, overtime - what's the difference?

As mentioned above, many mistakenly take a flexible schedule for an irregular working day, when the employment contract establishes work time the employee works without a fixed start and finish of the working day, which are determined by mutual agreement (Article 102 of the Labor Code of the Russian Federation). However, these are completely different things. Unlike a flexible work schedule, which is also fixed in an employment contract or an additional agreement to it, irregular working hours have clear boundaries. If it is written in the TD that the employee must start work at 10:00, then he cannot come to work at 12:00, since he has a position with an irregular working day. He must come at 10:00, otherwise he risks getting disciplinary action: remark or reprimand from the authorities (Article 192 of the Labor Code of the Russian Federation). And for being late for 4 hours or more, you can generally be fired.

Thus, an irregular working day, unlike a flexible schedule, has clear boundaries, but they can be “pushed apart” at the verbal request of the employer. Such requests may be episodic. The consent of the employee to work in excess of the normal working hours is not required, as well as additional payment.

In payment and in the need to obtain the consent of the employee for processing lies the difference between irregular working hours and overtime work. Let's consider the difference in more detail.
Irregular working hours:

does not require the consent of the person to involve him in work outside of working hours;
not issued by order (a verbal order from the authorities is sufficient);
payment for irregular working hours is not allowed;
the number of episodic exits "after work" is not regulated;
employees are entitled to leave for an irregular working day - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three additional days of leave. Naturally paid. More may be specified in the employment or collective agreement. Days are required to be provided even if the employer has not used his right to occasionally involve the employee in labor duties at odd hours during the year.

Overtime in 2019:

requires the mandatory consent of the employee, except in emergency cases;
issued in writing by the employer;
the duration of overtime work cannot exceed 4 hours for 2 consecutive days and 120 hours per year;
paid at least one and a half times for the first 2 hours and at least
twice in the following hours;
additional leave not allowed.

As can be seen from the comparison, on vacation, additional days for irregular working hours are relied upon, but overtime work is not relied upon. The opposite situation is with additional pay, which is made only for overtime work.

How is the irregular working day in 2019?

If an employee periodically performs work duties outside the established working hours, then this should be reflected in his employment contract (Article 100 of the Labor Code of the Russian Federation). Appropriate notes are also made in the internal regulations of the enterprise, where the regulation on irregular working hours should be issued. An employee whose labor duties stretch over a standard 8-hour working day or a 10-12 hour work shift should not neglect the official fixing of an irregular day. After all, in addition to the praise of the authorities, it also guarantees the employee an additional vacation for an irregular working day. This should also be written in the contract with the employee.

How many hours can be processed?

Lawyers are often asked the question: "Irregular working day - how many hours?". The Labor Code does not regulate irregular working hours by hours and does not decipher how many hours in total an employer can involve an employee in irregular work. However, if the employer is too zealous in his right to involve the employee in performing duties outside the normal working hours (does this not occasionally, but on an ongoing basis), then this can be recognized as overtime work and "knock out" due compensation. To do this, you will have to contact the state labor inspection and court. Such cases in judicial practice there is.

We hope that after reading this article about irregular working hours: “What does this mean?” - you don't ask anymore.

Irregular working hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.

For an employee working on a part-time basis, an irregular working day can be established only if, by agreement of the parties to the employment contract, a part-time working week is established, but with a full working day (shift).

Comments to Art. 101 Labor Code of the Russian Federation

1. The commented article reveals the concept of "non-standardized working day" and indicates that the list of positions of employees with such a working day is established by a collective agreement, agreements or local regulatory act adopted taking into account the opinion of the representative body of employees. For the first time at the legislative level, the article reveals the main features of this type of working day: work by order of the employer outside the normal working hours.

2. An irregular working day, as indicated in the commented article, is established for certain categories of workers with special working conditions, when, due to production needs, on certain days of the week they are allowed to work in excess of the normal working day, as a rule, without additional payment or compensation in the form time off. Therefore, an irregular working day is introduced for certain categories of workers who usually occupy leadership positions in the organization, and for specialists whose work cannot be accounted for in time. For example, on November 1, 2007, the Board of the Pension Fund of the Russian Federation adopted Decree N 274p "On approval of the List of positions for employees of the PFR system with irregular working hours and the establishment of the duration of the annual additional paid leave for employees of the PFR system."

However, these workers are subject to general rules regarding the start and end time of work. Their processing is not considered overtime work and is therefore not subject to increased pay. Compensation for processing on certain days of the week in excess of the established working hours is provided in the form of additional paid leave. The procedure for granting such leave is determined in local regulations or in an employment contract when hiring, since irregular working hours are one of the working conditions for these workers (Article 119 of the Labor Code).

The establishment of an irregular working day does not mean that these workers are not subject to the main provisions labor law on working hours and rest periods. Therefore, involvement in work outside the normal working hours cannot be systematic.

3. When an employee is involved in work outside the normal working day, his consent is not required, since this issue is negotiated when concluding an employment contract.

Some regulations establish that for certain categories of workers an irregular working day is introduced, for example, for car drivers, except for taxi drivers (Regulations on the peculiarities of the working hours and rest time for car drivers approved by Order of the Ministry of Transport of Russia dated August 20, 2004 N 15 ).

4. In a letter Federal Service on labor and employment of June 7, 2008 N 1316-6-1 "On work in the irregular working day" states that in accordance with Art. 101 of the Labor Code irregular working hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

An employee may be involved in the performance of his labor functions both before the start of the working day (shift) and after the end of the working day (shift).

From Art. 119 of the Labor Code in the new edition, the rule is excluded that if the employer does not provide additional leave for using the employee in irregular working hours, processing in excess of the normal working hours with the written consent of the employee is compensated as overtime work.

Thus, the Labor Code does not recognize overtime work during irregular working hours, in which certain guarantees must be observed (for example, limiting hours of processing, additional pay), and Art. 97 of the Labor Code, which provides for the possibility of processing in two cases (for overtime work and for work in irregular working hours), in fact, confirms this. In other words, for work in irregular working hours, compensation is provided only in the form of additional leave, the duration of which is determined by the collective agreement or internal labor regulations and cannot be less than 3 calendar days.

At the same time, the introduction of an irregular working day for employees does not mean that they are not subject to the rules that determine the start and end time of work, the procedure for recording working time, etc. These workers are on a general basis released from work on weekly rest days and holidays.

Thus, the involvement of employees who have an irregular working day to work on their weekends and non-working holidays should be carried out using the provisions of Art. Art. 113 and 153 of the Labor Code.

It should also be borne in mind that the involvement of employees to work outside the established hours of work for them should not be systematic, but should occur from time to time (sporadically) and in certain cases.

00:01 - REGNUM

The bill on irregular working hours was submitted to the State Duma by deputies from the Liberal Democratic Party, headed by Igor Lebedev, correspondent reports IA REGNUM March 28th. The adoption of the bill will protect legal rights and the interests of employees for rest and for the duration of working hours established by federal law, while limiting the employer's rights to use irregular working hours and establishing adequate compensation for workers for overtime, the authors note.

So, according to parliamentarians, an employer planning to use an irregular working day should fix in a collective agreement or a local regulatory act adopted taking into account the opinion of the representative body of workers, not only a list of positions of employees with irregular working hours, but also an approximate list of exceptional cases, in which such employees can perform their labor functions outside the duration of the working day (shift) established for them, as well as the procedure for accounting for the time actually worked by them outside the duration of the working day (shift) established for them.

Employees with irregular working hours are subject to the employer's rules that determine the start and end time of work, breaks for rest and meals. “These workers are generally exempted from work on weekends and non-working holidays,” said one of the authors of the initiative. Yaroslav Nilov.

It is proposed to prescribe in the legislation that an employee who has an irregular working day may, if necessary, occasionally perform his functions outside the duration of the working day (shift) established for him, not only by order of the employer, but also with his knowledge or consent.

At the same time, it is not allowed to establish an irregular working day for pregnant women, employees under the age of eighteen, as well as employees who are prohibited from doing so for health reasons, Nilov notes.

The conditions are prescribed under which an employee working on a part-time basis can be set an irregular working day - only if the employee has a part-time working week, but with a full working day (shift).

The bill establishes the maximum number of overtime hours in irregular working hours: the time actually worked by an employee outside a working day (shift) should not exceed 120 hours per year. Upon reaching the maximum number of hours, an employee can be involved in work only according to the rules for engaging in overtime work with appropriate compensation.

It is also proposed to prescribe the duration of the annual additional paid leave for an irregular working day - from three to fifteen calendar days, and the procedure for its determination is also established.

The employer undertakes to ensure accurate accounting of the time actually worked by each employee with an irregular working day outside the duration of the working day (shift) established for him.

One exception was made from the last rule, as well as from the rule for determining the duration of additional leave: they do not apply to the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants, as well as members of collegiate executive bodies organizations, since it is not possible to organize the recording of the time of their work after hours. Features of the application of their irregular working hours may be established by the constituent documents legal entity(organization), local regulations, employment contracts or decisions of the employer, authorized bodies of the legal entity, as well as the owner of the property of the organization or persons (bodies) authorized by the owners.

Irregular working day

DZUGKOEVA Zarina Vadimovna,

postgraduate student of the department of labor law and social security law, Moscow State Law Academy named after V.I. O.E. Kutafin (MSUA)

Brief annotation: the article is devoted to the study of one of the types of working hours - irregular working hours. The content of the concept of "irregular working day" is analyzed, contradictions in the legal regulation of this regime are identified, proposals are made to improve the current labor legislation in this area: the definition of limits on the length of time and compensation, as well as the circle of persons for whom an irregular working day should not be established.

This article is dedicated to one of the forms of working conditions - unlimited workday. The article analyzes the content of such concepts as "unlimited workday", reveals conflicts in legal regulations of such order, and makes suggestions on improvement actual labor law in the mentioned sphere: definition and compensations, and also circle of persons to whom unlimited workday shouldn't" t to provide.

Key words: working hours; irregular working hours; working hours; episodic; need.

working time regimen; unlimited workday; working time duration; episodically; necessity.

We believe that the term “non-standardized working day” used by the legislator is not correct enough, since “irregularity” as such is not related to the working day as a whole (it is normalized, i.e. of the established duration), but to work outside the established working hours , which, according to the law, should also be normalized and taken into account. In addition, Art. 101 of the Labor Code of the Russian Federation refers only to the day, and Ch. 16 of the Labor Code of the Russian Federation regulates the “Working hours” as a whole.

We must agree with L.Ya. Ostrovsky,

that an irregular working day is not some special standard of working time that differs from a normal or shortened working day, and from this point of view it cannot be put on a par with them.2

Historically, the main criterion for an irregular working day was called an increase in the volume of work. So, for example, N.G. Alexandrov defined "an irregular working day as a day that is not limited in time, but limited by the amount of work"3. E.A. Panova considers the irregular working day as unlimited by a fixed number of hours, and determined by the amount of work.4 The authors of the Encyclopedic Dictionary "Labor Law" define the irregular working day as "a type of working day for workers whose work, due to the nature of their activities, cannot be limited by the framework of a normal working day "5.

In our opinion, such definitions do not correspond to the legal nature of the working day. taking

1 Labor Code of the Russian Federation. Federal Law of December 30, 2001 No. 197-FZ // SZ RF. 2002. No. 1 (part 1). Art. 3.

Ostrovsky L.Ya. Working hours according to the Soviet labor law

nominations. Minsk: Publishing House of the Academy of Sciences of the BSSR, 1963. 157 p.

3 Aleksandrov N.G. Soviet labor law. Gosjurizdat, 1952. S. 203-204.

4 Panova E. A. Legal regulation labor on state farms. M., Gosjurizdat, 1960. S. 56.

5 Labor Law: Encyclopedic Dictionary. M.: BSE, 1959. S. 246.

for the criterion for determining the concept of an irregular working day, the amount of work or the scope of duties, the authors underestimate the importance of working time as an essential element of the measure of labor.

In Art. 101 Labor Code RF means the mode of operation that characterizes the temporary component of the worker's labor. This is also evidenced by the titles of the section and chapter of the Code - "Working hours" and "Working hours".

1) an irregular working day is a special mode of work;

2) it is established only for individual employees, the list of which must initially be fixed by a collective agreement or other normative act;

3) in order to attract employees to work on irregular working hours, an order from the employer is required;

4) irregular working hours are used only when necessary;

5) to work on irregular working hours, employees can be involved episodically (i.e. from case to case, and not systematically);

6) an irregular working day means going beyond the limits of normal working hours;

7) in the conditions of an irregular working day, the employee must perform not additional work, but his labor functions.

Thus, in relation to an irregular working day, the qualifying sign of a special mode of operation is its difference in any of the above parameters from the generally established mode of operation in the organization. Moreover, in accordance with the content of the criterion specified in paragraph 6, such a difference should be in the direction of increasing from the norm. Such an explanation seems necessary due to the fact that both part-time work, part-time work week, and hourly pay are also features of the working time regime, however

these provisions in this case do not act as qualifying ones.

In the literature, an opinion was expressed about the need to establish an extended working day for persons whose overtime is of a permanent nature.6 In our opinion, this point of view is not consistent with the position of the legislator. An irregular working day only allows for possible overtime, and does not imply overtime that is permanent. Therefore, the situation when certain categories of workers who have irregular working hours (for example, top managers) systematically work after hours is abnormal. To eliminate this situation, it is advisable to change the mode of working time, to establish a summarized account of working time.

The definition and content of the concept of the mode of operation causes lively debate among scientists-specialists in labor law.7 Thus, the absence of an established length of irregular working hours gives grounds to consider it as an estimated concept in labor law. First, according to the subjective composition of the establishment - irregular working hours are associated with the list. Secondly, the duration of work of persons with irregular working hours cannot proceed indefinitely, indefinitely in time. The real significance of an irregular working day lies not in the absence of state (legislative) regulation, but in the fact that under certain circumstances, as an exception and under conditions of special material compensation (additional leave), work in excess of the norms is allowed.

We believe that Art. 101 of the Labor Code of the Russian Federation does not contradict Art. 37 of the Constitution of the Russian Federation and art. 2, 4, 21, 22,

6 Venediktov V.S. Legal regulation rational use working hours: Author. diss. ... for the competition. cand. legal Sciences. Kharkov, 1984. 15 e.; Voevodenko N.K. Improving labor legislation on workers with irregular working hours // Problems of State and Law. Proceedings of researchers and graduate students. M., 1974, Issue. 9. S. 199-208 and others.

7 Protsevsky A.I. Working hours and working day according to Soviet labor law. M.: Gosjurizdat, 1963. 182 e.; Muksinova L.A. Working day and working week according to Soviet labor law: Abstract of the thesis. diss. ... for the competition. cand. legal Sciences. M., 1962. 16 e.; Muksinova L.A. Problems of regulation of working time in the USSR. M.: Yurid. literature, 1969. 216 e.; Silaev V. Irregular working day // Socialist legality. M., 1970. No. 5. S. 68-69 and others.

91, 99 of the Labor Code of the Russian Federation. Article 37 of the Constitution of the Russian Federation establishes a ban on forced labor, to which, in accordance with Art. 4 of the Labor Code of the Russian Federation, in particular, refers to work that an employee is forced to perform under the threat of any punishment (violent influence), according to the Labor Code of the Russian Federation, he has the right to refuse to perform it, including in connection with the payment of wages not full size.

An employee working on an irregular working day is currently involved in work outside the working hours established for him (in fact, overtime work) in a simplified manner without clear regulation of such concepts as “if necessary” and “occasionally” (for comparison : the procedure for engaging in overtime work is established by Article 99 of the Labor Code of the Russian Federation), does not receive payment for his work in violation of Art. 37 of the Constitution of the Russian Federation, art. 21 and Art. 22 of the Labor Code of the Russian Federation, and for refusing to work outside the working hours established for him, he may be subject to disciplinary liability in accordance with Ch. 30 of the Labor Code of the Russian Federation. At the same time, in violation of Art. 91 of the Labor Code of the Russian Federation, the employer does not take into account the time actually worked by the employee in excess of its established duration, which entails a violation of the overtime limit established by Art. 99 of the Labor Code of the Russian Federation. The consequence of an increase in the actual duration of working time is a decrease in the time of rest, during which the employee is free from performance job duties and which he can use at his own discretion, which does not comply, in particular, with the norms of Art. 37 of the Constitution of the Russian Federation, Art. 2, 21 and 22 of the Labor Code of the Russian Federation.

Since the criteria for the episodic involvement in work within the framework of an irregular day and the maximum number of hours of processing are not defined by law, in practice disputes between the employee and the employer very often arise. Let's try to figure it out.

Another feature of this mode of work is the ability of the employer to attract an employee both before the start and after the end of the shift without obtaining his consent to work in excess of the norm (Rostrud Letter dated 07.06.2008 No. 1316-6-1). This position is also confirmed by the recently issued Letter of the Ministry of Labor dated October 29, 2018 No. 14-2 / OOG-8616. In the letter, officials remind that the introduction of irregular working hours should not change the established working hours, and processing should not lead to the transformation of an irregular working day into an extended one.

If the employee’s employment contract does not contain a condition on the irregularity of his working hours, but he is occasionally involved in work outside his working norm, such an employee may also qualify for additional days off. However, he can also choose to be compensated in cash. In this case, you need to be guided by the new edition Art. 119 TK- the rule is excluded from it that if the employer does not provide additional leave for the use of an employee in irregular hours, processing in excess of the norm of working hours with the written consent of the employee is compensated as. Thus, the legislator does not recognize overtime work at an irregular day, which must be compensated by additional pay and has hour limits.

At the same time, for employees whose working day is irregular, they apply in terms of the beginning and end of the working day, providing them with weekly days off and rest on holidays. And this means that to attract an employee to additional work on weekends and holidays is possible only in compliance with the rules Art. 113 and Art. 153 of the Labor Code of the Russian Federation. This is also recalled in the Letter of the Ministry of Labor No. 14-2 / OOG-8616.

Night work is also a deviation from the norm, therefore, it must be properly documented and paid at an increased rate established by local acts or ( Art. 154 Labor Code of the Russian Federation).

Who sets an irregular day

The legislation does not restrict the employer in the choice of positions for which irregular working hours can be established. However, the definition of such a list must be approached taking into account the nature of the work and not include all the positions available at the enterprise. This may raise questions from auditors.

The list of positions can be drawn up in the form of a separate local regulatory act or included in a collective agreement, internal labor regulations. It must also be agreed with the representative body of employees (if any).

Sample order for approval of the list of positions

Documentation of conditions

When hiring an employee, it is necessary to familiarize yourself with the collective agreement, internal labor regulations and other local regulations in force in the organization and relating to his labor function. After that, an employment contract is concluded with the employee, in which a condition is made to work in irregular working hours. By signing it, the employee agrees with the nature of the work involving processing.

Sample employment contract

Also, this condition must be indicated in the order for employment.

sample order

It is worth noting that if an employment contract is concluded with an employee for a position that is not in the approved list of professions with irregular working hours, then this condition is illegal. Consequently, the employee has the right to refuse to work beyond the length of the working day and, on this basis, he cannot be held disciplinary liable.

If an employee is transferred to a position for which an irregular day is set, then the employer should:

to acquaint him with local regulations containing a list of positions with irregular working hours;
enter into an additional agreement employment contract on the inclusion of the condition of an irregular day and compensation for this nature of work;
issue an appropriate order (in free form).

If the employee excludes the condition of an irregular day, then the employer must conclude an additional agreement with him, which will contain a different mode of work, and issue an appropriate order.

Registration of attraction to work above the norm

The procedure for attracting workers to work in excess of the norm during irregular working hours is not regulated. In practice, often the involvement is carried out on the basis of a verbal order from the boss or at the initiative of the employee himself, who did not have time to complete the task. It seems that in order to guarantee the rights of workers, it is advisable for them to require a written order from the employer to involve them in work in excess of the norm, otherwise it will be difficult to prove the existence of such an expression of the will of the employer.

Job Accounting

Accounting for the working time of an employee with an irregular day is carried out without taking into account the time worked in excess of the norm. This is due to the fact that it does not financial compensation, as in the case of overtime work, and additional annual leave is granted. But since article 91 of the Labor Code of the Russian Federation it is determined that the employer is obliged to keep, actually worked out by each employee, the employer can keep such records in a separate independently developed document, for example, a log book or a separate time sheet. This can come in handy if an emergency happens while doing work outside of business hours.

Part-time work and part-time work

According to article 101 of the Labor Code of the Russian Federation, an employee working on conditions can be set an irregular day if he has a part-time working week, but with a full working day (shift).

If an employee has a part-time job, then it is also impossible to establish an irregular working day for him. In this case, one of the modes of labor completely loses its meaning.

Also, the law does not prohibit the establishment of an irregular day. But there are some peculiarities here:

if the duration of the working day is not more than 4 hours for a part-time worker, then such a working day is considered incomplete. Therefore, it is impossible to establish an irregular working day;
if a part-time worker at the main place of work is free from the performance of labor duties on some days, then he can work a full shift with an incomplete working week. In this case, it will be possible for him to establish an irregular working day (according to Art. 101 Labor Code of the Russian Federation) and, accordingly, compensation in the form of annual paid leave of at least three calendar days.