There are often cases when an employee needs to take a vacation, even without saving wages. As a rule, an employee takes leave at his own expense family circumstances, but this is far from the only good reason. A person writes an application for leave, after which the employer reviews this application, and, as a rule, it is he who decides whether to let his employee go or not. But sometimes this may turn out to be the responsibility of the company itself, which is why it is necessary to carefully read certain standards Labor Code RF. As for the duration of the vacation, this point is negotiated between the employee and the employer separately. (Part 1 of Article 128 of the Labor Code of the Russian Federation).

When an employer considers an application from its employee, it first of all pays attention to the reason why the employee is asking for leave at his own expense. The fact is that, based on Article 128 of the Labor Code of the Russian Federation, the employer himself decides whether to provide leave without pay or not, since according to the Labor Code this is his right, not an obligation. Among other things, it is necessary to take into account not only how valid the reason given by the employee is, but also how much the organization may suffer if the employee does go on vacation, even at his own expense.

Example of an application for leave without pay

Providing vacation at your own expense is mandatory

But sometimes it happens that the employer is obliged to provide leave without pay, as the Labor Code of the Russian Federation states. This doesn't happen very often, but it does happen.

Here are examples of employees who have the right to request leave:

• working old-age pensioners (by age);
• parents and wives (husbands) of military personnel who were killed or died as a result of wounds, contusions or mutilations received during service, or as a result of a disease associated with the passage military service;
• working disabled people; workers in cases of birth of a child, registration of marriage, death of close relatives.

In addition to all of the above, the Labor Code also mentions other points when it is the employer’s responsibility to provide leave without pay. This happens in cases where the employee is also a student at a higher or secondary educational institution, and he needs to combine work and study. Also, if the employee is just planning to enter a university.

Also in the Labor Code there are other cases when the employer undertakes to provide leave without pay. Let's take, for example, part two of Article 173 of the Labor Code of the Russian Federation. Here is a list of employees entitled to leave if they enter an educational institution of higher education vocational education. These include:

• employees admitted to entrance examinations to educational institutions of higher professional education;
• employees - students of preparatory departments of educational institutions of higher professional education;
• workers studying at state accreditation educational institutions higher professional education on full-time basis, combining study with work.
• Also, part two of Article 174 of the Labor Code of the Russian Federation provides for the employer’s obligation to provide leave at his own expense to employees who enroll in an educational institution of secondary vocational education. These include:
• employees admitted to entrance examinations at state-accredited educational institutions of secondary vocational education;
• employees studying in state-accredited educational institutions of secondary vocational education on a full-time basis, combining study with work, to pass intermediate certification.

It is also noted that leave without pay can be granted only if the institution of secondary vocational education has state accreditation.

Among other things, an employee can also ask the employer to provide leave at his own expense to part-time employees.

It is also worth considering the fact that the employer is obliged to provide leave not only in view of the Labor Code, but also in view of other federal laws. Let's take, for example, paragraph 11 of Article 11 of the federal law “On the status of military personnel.” In view of this law, the spouse of a military personnel has the right to request leave at the same time as her husband's leave. In this case, the duration of leave without pay for an employee is equal to the duration of leave for a military personnel. In this case, the employer simply does not have any right to refuse an employee leave without pay, and if there are violations, the employee has the right.

The following federal laws, in addition to the Labor Code of the Russian Federation, on the basis of which the employer is obliged to provide leave without pay:

• No. 138-FZ - to individual participants in the election process for the duration of elections to local government bodies;
• No. 5-FZ - Heroes of Socialist Labor and full holders of the Order of Labor Glory;
• No. 67-FZ - to the candidate’s proxies during the referendum;
• No. 19-FZ - to individual participants in the election process of the President of the Russian Federation (candidate’s proxies, members of the election commission with the right of advisory vote);
• No. 51-FZ - to individual participants in the process of election of State Duma deputies (candidate’s proxies, members of the election commission with advisory voting rights);
• No. 76-FZ - to spouses of military personnel in relation to part of the leave exceeding the duration of annual leave at their main place of work;
• No. 4301-1 - To Heroes Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory (additional leave for up to three weeks a year at a time convenient for them).

Duration of compulsory leave at your own expense without pay

Documentation of leave without pay

Leave without pay is granted to an employee based on an application. In it, he indicates the start date and duration of the vacation, as well as the circumstances due to which he needs this vacation. Along with the application, you can submit documents (copies thereof) confirming the circumstances specified in it.

In order for unscheduled leave to be approved by the employer, the application must be completed correctly. The application must indicate the start and end date of the leave and the reasons why the employee needs leave at his own expense. Copies of documents (if any) that confirm the specified reasons are also submitted along with the application.

The employer agrees to provide leave based on the order in Form No. T-6. After the employee has read the order, he signs it. The order states:

• surname, name, patronymic of the employee;
• reason for leave;
• start date and duration of vacation.

Information about leave is entered into the working time sheet, as well as into the employee’s personal card.

As for the timesheet, it indicates the time of vacation at one’s own expense with the code “OZ”, if the employee goes on vacation, based on the provisions of the current legislation of the Russian Federation, or with the code “DO”, if the employer himself authorized and provided the vacation .

Other marks on the time sheet:

• OZ - if an employee is on leave without pay, in the time sheet.
• DB - annual additional leave without pay.
• UD - additional leave in connection with training without pay

Guarantees for an employee on voluntary leave

An employee on leave without pay cannot be dismissed by the employer. Based on Article 81 of the Labor Code of the Russian Federation, an employee cannot be dismissed at the initiative of the employer, excluding only those cases if the organization was liquidated or the individual entrepreneur ceased his activities.

There are cases when an employee falls ill while on leave without pay. After that, he brings, but the organization is not obliged to pay the employee benefits for this reason. The fact is that such a benefit cannot be assigned to the insured person for the period while the employee was released from work with or without pay, in view of the legislation of the Russian Federation. An exception is cases of loss of ability of an employee to work if he was injured during his annual paid leave.

In cases where an employee went on vacation at her own expense and at the same time went on maternity leave, the organization is obliged to pay maternity benefits, since the woman is the insured person. It is also noted that the leave is interrupted on the same day when the employee goes on maternity leave. The organization is obliged to pay maternity benefits in the amount of 100% of average earnings, based on paragraph 1 of Article 11 of Federal Law No. 255.

You are in the section Leave without pay, which belongs to the section.

An employee has the right to count on an additional break from work if there are good reasons for this.

Rest time is not paid and does not in any way affect the duration and procedure for providing annual next vacation. This period is called among workers - leave at their own expense, which means without saving earnings.

What is the correct name for a vacation at your own expense?

Additional unpaid rest is popular among workers; it is different from the regular main one. Annual leave is provided strictly according to schedule; changing its time frame is a rather complicated procedure.

If there is a need for days off between vacations, employees have the right to receive vacation without pay, in accordance with the Labor Code of the Russian Federation.

Among the personnel appear several formulations for this period:

• at your own expense;
• unpaid;
• without content;
• administrative;
• without pay.

Sometimes they even combine several names, for example, “without salary”.

According to labor legislation, the correct name will be “ without pay«.

This is exactly what this period should be called in documents – , .

Other wording is acceptable only in oral communication, they are not applicable in the documents, since their definition is not in labor laws.

What do you mean without pay?

This means that the employee in a given time period does not receive any money from the employer: no vacation pay, no salary.

In the working time sheet, separate days are provided for such days.

Article 128 of the Labor Code determines what categories of workers are entitled to count to receive leave at your own expense.

In addition, it contains important wording that days off without pay can be provided in other cases provided for by the labor code, collective agreement and federal laws.

In particular, unpaid additional leave can be provided on the basis of Articles 173 - 176 of the Labor Code of the Russian Federation, it is called.

Is it possible to take days off without pay at the request of the employee?

Administrative leave at the employee’s own expense has the right to take. However, whether the employer will provide it depends on the request. For example, according to the Labor Code of the Russian Federation, they can count on 14 additional days every year at their own expense. The employer has no right to refuse.

IN mandatory 5 days leave is also provided in case of serious events such as wedding, birth of a daughter or son, death of a neighbor. Employees can take time off without pay on their own initiative. disabled people, their number per year can reach 60 days.

For study vacation period without pay depends on the type of training, its form and a number of other factors.

In other cases It is possible to take time off at your own expense with the consent of the employer, which analyzes the reason in the employee’s application. If she is respectful and the employer does not mind, then the leave is issued.

The main thing in providing unpaid days off at your own expense is the employee’s personal initiative.

Is unpaid leave provided at the initiative of the employer?

The Labor Code of the Russian Federation clearly defines that time off without pay is provided only at the initiative of the employee. The employer has no right to send employee on unpaid leave.

Important! The main document on the basis of which the order is drawn up is the employee’s statement, written voluntarily on his own initiative.

That is, the worker personally expresses a desire to rest, indicates the reason, and then receives approval or refusal from management.

If, forcing an employee to write an application for unpaid leave, then it's illegal. An employee can complain in such a situation to the labor inspectorate.

If an employer needs to suspend an employee temporarily from work and not pay him wages, he can go in two ways:

1. Reach an agreement with the employee that he will voluntarily write an application for time off at his own expense.
2. Check out the downtime a break from work or any other legally available means.

How many unpaid days can I get?

additional unpaid leave can be of any kind. Exist specific values for individual bases, it is also indicated in Article 128 of the Labor Code of the Russian Federation. However, by agreement with management, these deadlines may be extended.

Can I take it at my own expense?

In fact, no law prohibits the installation any duration for rest without pay - weeks, months or even years. The main thing is the personal desire of the employee and the consent of the employer.

Does management have the right to refuse?

Employer may refuse in providing time off at your own expense, but only if the basis is not specified in the Labor Code of the Russian Federation, collective agreement or federal law.

For established reasons, refusal is not possible., holidays are available at any time upon written request.

conclusions

A vacation period without pay is a period of rest that allows an employee to resolve personal matters without resorting to using annual leave. During this period, the employee does not receive wages, but solves his problems and retains basic rest for the future.

By providing this type of leave, the employer infringes on the labor rights of employees provided for in Art. 157 Labor Code of the Russian Federation

the employer, as it seems to him, having “good” intentions, operates on the fact that in crisis moments in the life of the organization he does not fire employees, preserving their jobs

An employee’s refusal to work due to a delay in paying him wages should not manifest itself in the form of leave without saving his wages, since the application of Art. 128 of the Labor Code of the Russian Federation is absolutely inappropriate in this case

what is not prohibited by law is permitted

The practice of providing leaves without pay with some kind of work by agreement of the parties seems very doubtful

Leave without pay is still convenient for employers to consider, first of all, as a kind of reserve for reducing the cost of employee benefits

proclaimed in Art. Art. 173 - 177 of the Labor Code of the Russian Federation, guarantees for employees who combine work with training, in most cases turn out to be a “luxury” for employers

• LEGAL REGULATION OF LEAVE WITHOUT SALARY

• ILLEGAL REPLACEMENT OF Idle Time WITH LEAVE “DUE TO PRODUCTION NEED”

• TYPICAL VIOLATIONS WHEN PROVIDING STUDY LEAVES

• EMPLOYEE'S REFUSAL TO WORK AS AN ACTUAL LEAVE WITHOUT PAY

Approximately in 1995 – 1999. In our country, there was a kind of “epidemic” of providing so-called “leave without pay at the initiative of employers,” which was due to the financial and economic crisis of both organizations and the country as a whole.

Back in 2000, the tense situation continued to persist in certain regions of Russia. Thus, according to certain statistical data, in particular on the work of the Commissioner for Human Rights in the Perm region, almost half– more precisely, 43% of the complaints received concerned the illegal sending of workers on leave without pay .
Currently, in generalizations of the work of supervisory and control bodies on compliance with the labor legislation of the Russian Federation, in specialized literature and media publications, one can find this violation of the law as one of the common phenomena more and more rarely.

Meanwhile, today a consistently large part of citizens’ appeals to supervisory and control authorities is related to late payment of wages and vacation pay. . Judging by the oral complaints and indignations of workers, illegal granting of leave without pay remains a pressing issue.

As before - in Art. 76 of the Labor Code, and today - in Art. 128 Labor Code Russian Federation(Labor Code of the Russian Federation), it is possible to provide employees with leave without pay. In the science of labor law, it refers to social species vacations, that is, not related to the employee’s labor.

Moreover, if previously this leave was called “short-term”, now the legislator establishes different durations of such leave depending on assignment to a particular group:

• leave without pay, granted by agreement of the parties to any employee (paragraph 1 of article 128 of the Labor Code of the Russian Federation);
• unpaid leave provided by the employer without fail separate categories employees or all employees upon the occurrence of a certain important event in the life of an individual (paragraph 2 - paragraph 8 of Article 128 of the Labor Code of the Russian Federation).

In the first case at the written request of the employee in connection with family circumstances and other valid reasons, the employer has the right provide the employee with the desired leave, the duration of which is determined solely by agreement sides In this regard, such leave does not have to be short-term, no legally established it is not limited in time. By law, the employee and employer must together determine the period of leave without pay, based on the nature of the reasons and specific circumstances that caused the need for this leave.

However, in fact, the specified group of vacations is provided “ with the consent of the employer" (or even "at his discretion"). In practice it looks like this.
1) The employee, in the form of a written application, formalizes his request for leave, indicating the reason (circumstances) and period (its beginning and end).
It is noteworthy that indicating a valid reason is mandatory, despite the fact that the reason clearly relates to the employee’s private life. It is in the interests of the employee himself to provide the necessary information to receive leave.
Personal information about the employee that has become known to the employer should be classified as the employee’s personal data, the procedure for storing, processing and using which is carried out in accordance with the requirements of Chapter 14 of the Labor Code of the Russian Federation, the Federal Law “On Personal Data” No. 152-FZ dated July 27, 2006 . and other federal laws.
2) In turn, the employer, considering the employee’s application, determines the validity of the reasons, the possibility of granting leave and its duration. Since the Labor Code of the Russian Federation does not contain an approximate list of valid reasons, employers mainly focus on the current widespread practice. So, for example, valid reasons include: not only the registration of a marriage (paragraph 7 of Article 128), but in general: a wedding; anniversaries; seeing off my son for military service; sending children on vacation to camps, holiday homes, etc.

In an exhaustive version, it is, of course, not possible to indicate the reasons and circumstances that fall into the category of valid ones, and it is also necessary, but in the most detailed, approximate list, proven by practice, Art. 128 of the Labor Code of the Russian Federation, in my opinion, is still needed. This will narrow the scope of arbitrariness of unscrupulous employers in their self-determination valid reasons and will guide the workers themselves, who for the most part do not have the skills to interpret legal norms.

In any case, even if an appropriate legislative indicative list is established, the question of whether the employer’s reasons are valid should be assessed using individual approach in each specific case, taking into account all existing circumstances.

Thus, it turns out that in practice the employer, at his discretion, can refuse to grant an employee leave without pay if he considers the reason specified in the application to be unjustified.

Meanwhile, the question remains unresolved at the legislative level about what decision the employer needs to make by agreement with the employee in the event that the employee’s reason is valid for granting him leave without pay, but the interests of production require the presence of the employee at the workplace. In this case, on the one hand, on the balance are: private life a specific employee, and on the other hand, the production tasks and interests of the employer.

3) If the issue of granting leave without pay is positive, regardless of its purpose and duration, the employer issues order (instruction) on leave, which the employee gets acquainted with as a standard upon signature. Accordingly, in the order (instruction), in addition to indicating the full name. The employee must contain: the reason (circumstance) for the leave, its specific duration and the start and end dates of such leave.
Obviously, leaves without pay are not subject to the rules on annual basic and additional leaves provided for in Art. 122 – Art. 127 Labor Code of the Russian Federation.

Leave without pay, unless otherwise directly provided by law, is granted independently and without connection with other leaves.
During this leave, the employee retains his place of work (position), but his salary is not retained (not paid).
With amendments to Art. 121 of the Labor Code of the Russian Federation corresponding to Federal Law No. 157-FZ of July 22, 2008. The length of service that gives the right to annual basic paid leave also includes the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.
Accordingly, if the duration of unpaid leave exceeds the established 14 calendar days during the working year, then they should not be included in the specified length of service. In this regard, HR specialists must track and summarize the duration of such vacations throughout the year. In the event that 14 calendar days during the year have already been used by the employee, it is important to inform the employee who wishes to receive leave without pay in advance (before issuing an order or instruction on leave).
Having received leave without pay, the employee has the right to interrupt it at any time and return to work, having agreed this question with the employer. The latter action follows from the legislative wording that unpaid leave is granted “by agreement between the employee and the employer.” Consequently, the parties can reduce the vacation period in the same manner.
Special literature sometimes indicates that leave without pay can be granted “with its possible development, by agreement of the parties, in the subsequent period, based on the conditions and capabilities of production” .
On the one hand, what is not prohibited by law is permitted, especially in the context of the development of the contractual method of regulation in labor relations, when the parties can provide for such a condition, again by agreement of the parties. However, on the other hand, working out vacation time contradicts the very meaning of vacation, whatever it may be, “social” or “labor.” Moreover, if the legislator considers any kind of work for an employee to be necessary, then there are legislative guidelines for this (for example, in Article 80 of the Labor Code of the Russian Federation, as a general rule, the employee’s work is actually determined before the expiration of the two-week notice period for dismissal due to at will ).
In the context of the above, the practice of providing leaves without pay with some kind of work by agreement of the parties seems very doubtful. In this regard, for the uniform application of the norms of the Labor Code of the Russian Federation, in particular Art. 128, the legislator should clearly determine whether such processing is possible if the parties agree on it.
In the second case employer based on a written application from the employee must provide leave without pay:

• to all willing employees in cases of the birth of a child, marriage registration, death of close relatives - up to 5 calendar days (Article 128 of the Labor Code of the Russian Federation);
• certain categories of persons:
• participants of the Great Patriotic War– up to 35 calendar days a year (Article 128 of the Labor Code of the Russian Federation);
• for working old-age pensioners (by age) – up to 14 calendar days (Article 128 of the Labor Code of the Russian Federation);
• parents and wives (husbands) of military personnel who died or died as a result of injury, contusion or injury received during the performance of military service duties, or as a result of an illness associated with military service - up to 14 calendar days a year (Article 128 of the Labor Code of the Russian Federation);
• for working disabled people - up to 60 calendar days a year (Article 128 of the Labor Code of the Russian Federation);
• employees admitted to entrance examinations in educational institutions of higher professional education - 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
• for employees admitted to entrance examinations in educational institutions of secondary vocational education that have state accreditation - 10 calendar days (Article 174 of the Labor Code of the Russian Federation);
• employees - students of preparatory departments of educational institutions of higher professional education for passing final exams - 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
• employees studying in state-accredited educational institutions of higher professional education for full-time study, combining study with work, for passing intermediate certification - 15 calendar days per academic year, and for preparing the defense of the final qualifying work and passing the final state exams - four months, for passing the final state exams - one month (Article 173 of the Labor Code of the Russian Federation);
• employees studying in state-accredited educational institutions of secondary vocational education on a full-time basis, combining study with work, for passing intermediate certification - 10 calendar days in the academic year, and for preparing the defense of the final qualifying work and passing the final state exams - two months, for passing the final exams – one month (Article 174 of the Labor Code of the Russian Federation).

In addition, the employer is obliged to provide leave without pay to persons working part-time, if in a part-time job the duration of the employee’s annual paid leave is less than the duration of leave at the main place of work - the difference between these leaves will be the duration of leave without pay ( basis - Article 286 of the Labor Code of the Russian Federation).
Almost all categories of veterans (disabled war veterans, combat veterans, etc.), in accordance with the Federal Law “On Veterans” No. 5-FZ dated January 12, 1995. (as amended by Federal Law No. 186-FZ of December 23, 2003), unpaid leave is provided for a period, as a rule, of up to 30 working days per year, with certain exceptions.
According to the provisions of Part 15 of Art. 46 of the Federal Law “On the State Civil Service of the Russian Federation” No. 79-FZ dated July 27, 2004. (as amended by Federal Law No. 30-FZ of March 29, 2008) a civil servant for family reasons, other valid reasons and in other cases provided for by federal laws, upon his written application, by decision of the employer’s representative, may be granted leave without pay monetary allowance lasting no more than one year.
Also in accordance with Part 6 of Art. 21 of the Federal Law “On Municipal Service in the Russian Federation” No. 25-FZ dated March 2, 2007. municipal employees, by analogy with civil servants, may be granted leave without pay for a duration of no more than one year.
A special place in the type of vacation under consideration is occupied by Holiday to care for the child provided to women for the period of child care and until the child reaches the age of three years, as well as provided under the same conditions to the child’s father, grandparents and other relatives or guardians actually caring for the child (Article 256 of the Labor Code of the Russian Federation).
On the one hand, the legislator does not directly indicate that this leave is “leave without pay.” On the other hand, this is implied and most of the rules already noted apply, as in leave without pay. In particular, during the period of parental leave, the employee retains his place of work (position). At the same time, when an employee returns from such leave, approval from the employer is not required; this is a personal decision of the employee, about which the other party to the employment relationship only needs to be informed in advance.
So, the list of categories of employees given in this article to whom the employer is obliged to provide additional leave without pay is not exhaustive. Indication of such categories of persons is provided not only by scattered norms Labor Code of the Russian Federation, but also different federal laws and (or) collective agreement.
So, for example, in a collective agreement according to Art. 263 of the Labor Code of the Russian Federation: 1) employees with two or more children under the age of fourteen; 2) employees who have a disabled child under the age of eighteen; 3) a single mother raising a child under the age of fourteen; 4) a father raising a child under fourteen years of age without a mother may be granted additional annual leave without pay at a time convenient for them for up to 14 calendar days. Moreover, this leave, at the request of the employee, can be added to the annual paid leave or used separately in full or in parts. Transferring this leave to the next working year is not allowed.
***
IN modern conditions development of the country, leave without pay is still convenient for employers to consider, first of all, as a kind of reserve for reducing the costs of employee benefits guaranteed by the current labor legislation of the Russian Federation. The illegal use of this leave is especially common in conditions of insolvency of the organization or individual entrepreneur.
However, it would be unfair to focus only on the unlawful actions of employers. Employees who have expressed agreement with the employer’s proposal through their actions, in particular - a personally written statement - request, contribute to the provision of leave without pay, actually initiated by the employer.
The following typical situations often occur in law enforcement.
1) For more than a decade, there has been a dubious practice of using unpaid leave in the interpretation of “forced”. Other names are widely used in the legal literature: “administrative” or “industrial” leave. No matter how such leave is called, it is not provided for in the Labor Code of the Russian Federation.
In practice, this leave is provided at the initiative of the employer, as a rule, in order to prevent mass layoffs, when there is a threat of bankruptcy of the organization, or in a particular case of lack of work (regardless of the nature of the reasons). Thus, the employer, as it seems to him, having “good” intentions, operates on the fact that in crisis moments in the life of the organization he does not fire workers, retaining their jobs, trying to resolve the economic difficulties that have arisen during the period of vacation. production needs”, which most often later turns out to be long-lasting.
In the legal literature one can find an opinion according to which such situations should be assessed differentially, taking into account the specific circumstances. For example, “if an employee or group of employees agrees to go on long leave without pay, then theoretically this is not a violation of the law", "In this case, the employee himself decides" .
When you analyze the situation that has arisen in the context of protecting the labor rights of employees and employers and maintaining a certain balance of their legal interests, then, at first glance, the use of leave without pay may seem justified and appropriate.
However, when interpreting the current labor legislation of the Russian Federation, it is not possible to agree with this opinion of scientists about the legality of using “forced” leave without pay. On the contrary, I would like to call such a practice of their use vicious, and classify violations as gross. This statement is due to a number of factors.
Firstly, we must not forget that this type of leave is not provided for by the current norms of the Labor Code of the Russian Federation. Moreover, the categorical denial of “forced” leave at the initiative of the employer has been established since June 27, 1996, in accordance with the explanation of the Ministry of Labor of the Russian Federation No. 6 “On leave without pay at the initiative of the employer”, approved by Resolution of the Ministry of Labor of the Russian Federation No. 40 dated 27 06.1996 and still retains its legal force.
Secondly, leave without pay in accordance with the provisions of Art. 128 of the Labor Code of the Russian Federation is provided “for family reasons and other valid reasons,” which means social needs that arose in the personal life of the employee, and not because of the need of the employer.
Finally, thirdly, by providing this type of leave, the employer infringes on the labor rights of employees provided for in Art. 157 Labor Code of the Russian Federation. The situation that has arisen should be regarded as nothing other than downtime subject to payment, with the exception of downtime caused by the fault of the employee.
In practice, difficulties are obvious in determining the type of downtime: it happened due to the fault of the employer (1) or for reasons beyond the control of the employer and employee (2) - the payment varies accordingly: from 2/3 of the average salary to 2/3 of the tariff rate, salary (official salary), calculated in proportion to downtime (Article 157 of the Labor Code of the Russian Federation).
If we talk about the employer’s fault, which is quite possible, since the employment contract with the heads of organizations (who are employers) often provides for the obligation to ensure the profitable operation of the organization, then it, like any other fault, must be proven and documented. In this regard, at least two unresolved questions arise: who will establish the employer’s guilt, and in what order will this be done?
Based on the above, based on the current norms of the labor legislation of the Russian Federation, it seems unacceptable and illegal replacement of downtime through no fault of the employee with so-called “forced” leave.
2) The number of complaints from workers about illegal sending of them to leave without pay and (or) annually basic paid vacation instead additional leave while maintaining average earnings for the duration of their studies, in violation of the guarantees provided for in Chapter 26 of the Labor Code of the Russian Federation for employees combining work with study.
It should be noted that the modern legislator has significantly limited the application of the norms of Chapter 26 of the Labor Code of the Russian Federation on the provision of additional leave while maintaining average earnings in the following areas:

• in relation to employees who are trained by correspondence or part-time study;
• only successfully training workers;
• in strictly specified cases, for each of which it is set certain duration additional leave while maintaining the average salary;
• state guarantees established at the legislative level apply only to those employees who study in educational institutions, having state accreditation(in the absence of such accreditation, guarantees may be established employment contract and (or) a collective agreement);
• if an employee studies simultaneously in two educational institutions, then guarantees and compensation in connection with the training are provided only in one educational institution(at the employee's choice).

Apparently, proclaimed in Art. 173 - 177 of the Labor Code of the Russian Federation, guarantees for employees who combine work with training, in most cases turn out to be a “luxury” for employers, so they often refuse to provide employees with paid “study” leave. However, this does not justify the actions of employers in non-compliance with the specified norms of the Labor Code of the Russian Federation.
In addition, the employer often puts the employee in a position where he receives, for example, higher education necessary, but only on account of the annual basic paid leave and (or) taking leave without pay. Thus, the employee is faced with a purely personal problem: how to get an education (more precisely, a document confirming the fact of receiving an education), skillfully combining it with work and without losing it. It is not surprising that under such circumstances a “race for education certificates” arose in the country, unfortunately, more and more often - without simultaneous achievement high level education, as the main result of quality education.
So, the main reasons for this group of violations include, first of all, reluctance of employers to incur additional financial costs to provide employees with the guarantees and compensation provided by law.
As practice shows, employees do not prefer to officially report violations by the employer of the provisions of Chapter 26 of the Labor Code of the Russian Federation to the competent authorities for well-known and now banal reasons, expressed in fears of conflicts with the employer and loss of work.
Meanwhile, this part of the violations in the world of work is not latent, so it seems that the main way to suppress them should be strengthening control and supervision over compliance with the norms of the Labor Code of the Russian Federation, which establishes guarantees and compensation for employees combining work with training.
3) It has actually turned into unpaid leave fairly new institute self-defense of workers' labor rights through suspension of work in case of delay in payment of wages for more than 15 days. To exercise this right, it is required that the employee notify the employer in writing in advance (which follows from the meaning of the norm, but is not specified, although the period should be specified). . According to the provisions of Art. 142 of the Labor Code of the Russian Federation, in some cases and for certain categories of persons, suspension of work is prohibited.

During the period of suspension of work, as determined by the legislator, the employee in work time may be absent from his workplace. In this case, he is obliged to “go to work no later than the next working day after receiving written notice from the employer about readiness make payment of delayed wages on the day the employee returns to work” (paragraph 9 of Article 142 of the Labor Code of the Russian Federation).

This legislative formulation is imperfect and needs to be improved. First of all, attention is drawn to the fact that The presence of readiness to pay wages does not mean actual payment.

In addition, the serious question has been repeatedly raised about whether the time the employee is suspended from performing his or her duties is subject to payment. labor responsibilities in the specified cases.

The use of this institution in the modern version of the Labor Code of the Russian Federation, on the one hand, is not beneficial for workers, since in practice a simple logical rule applies: “I didn’t work, so no wages are due.” On the other hand, ultimately, this is preferable for the employer, but it comes into clear conflict with the purpose of the provisions of Art. 142 of the Labor Code of the Russian Federation, turning it into a “dead norm”.

Unfortunately, with the latest amendments to the Labor Code of the Russian Federation introduced by Federal Laws No. 157-FZ and No. 160-FZ, respectively, dated July 22, 2008. and 07/23/2008, the considered nuances remained unsettled, but clearly needed rethinking.

In accordance with Art. 142 and art. 236 of the Labor Code of the Russian Federation, the employer, regardless of the presence of guilt, bears financial liability to the employee in connection with the late payment of wages with the payment of interest in the amount of not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time from the amount not paid on time for each day of delay, starting from the next day after the due date for payment, up to and including the day of actual settlement.

In this case, the marked size monetary compensation It is not practiced to raise people in labor and (or) collective agreements.
It seems that in order for the current declarative norm of Art. 142 Labor Code of the Russian Federation in real life“earned”, the legislator should, along with the interest on unpaid wages provided for in Art. 236 of the Labor Code of the Russian Federation, directly in Art. 142 of the Labor Code of the Russian Federation establishes the employer’s obligation, regardless of whether he is at fault, to make certain payments for the entire period of forced suspension of work by the employee.

In case of violation by the employer of the obligations assumed, there must be real responsibility, tangible for him. Perhaps, only such radical measures can lead to the effectiveness of the mechanism for realizing the employee’s right to refuse to perform labor duties, effectively protecting the employee’s constitutional right to receive wages on time and in full, thereby setting the employer’s priorities in favor of paying wages to employees, Firstly.

In any case, no matter what rational changes are made to the current labor legislation of the Russian Federation, it is obvious that an employee’s refusal to work due to a delay in paying him wages should not manifest itself in the form of leave without pay, since the application of Art. 128 of the Labor Code of the Russian Federation is absolutely inappropriate in this case.

Summarizing the above, we can come to the conclusion that there are many nuances when legal regulation Leave of workers without pay has not been addressed by the legislator. Taking into account the current illegal practice of using leave without pay, especially at the present stage of development of our country, many norms of the current labor legislation of the Russian Federation need to be rethought; in order to develop uniform law enforcement, changes and additions are required.

Nesterova T.A. Protection of labor rights by the Commissioner for Human Rights // Labor Law. 2005. No. 3. P. 49.

See, for example: Information and analytical bulletin of the State Labor Inspectorate in the Irkutsk Region for 2007. (annual review - information) / Compiled by: Head of the State Labor Inspectorate in the Irkutsk Region S.I. Konoplev /. – Irkutsk, 2008, p.53.

See for more details: Kiselev I.Ya. Labor law of Russia and foreign countries. International Labor Standards: Textbook. – Ed. 2nd, rev. and additional – M.: Eksmo, 2006, p. 209 - 210.

When annual leave has been used, and a situation arises in life that vacation is needed right now, the employee can take additional days rest by contacting your employer with an application for leave at your own expense. What this leave is, who has the right to use it and what features it has, we will consider in this article.

Vacation without pay

Vacation, which is commonly called “at your own expense,” is regulated by Art. 128 Labor Code of the Russian Federation. IN labor legislation The concept of “vacation without pay” is used. It is often also called administrative.

Based on the law, such leave is granted:

• for family reasons and other valid reasons;
• duration, which is agreed upon by the employee and the employer.

This means that the employer is not obliged to provide the employee with unpaid leave, and if it is unprofitable for him to leave the employee during this period or he considers the reasons given by the employee to be unjustified, he can refuse him leave (read about exceptions below).

Advantages and disadvantages

In addition to the fact that the vacation we are considering is not paid, you also need to take into account the following:

• no insurance premiums are paid during this period, which means the pension does not increase;
• if an employee falls ill during this period, the days on which he was on vacation will be excluded from sick pay;
• despite the fact that maximum term not established by the legislator, in Art. 121 of the Labor Code of the Russian Federation there is a rule according to which, in the case of a vacation duration of more than 14 days, the calculation calendar year to assign paid leave is shifted by the amount of the excess.

However, unpaid leave also has its positive aspects. All of them are that the employee can legally obtain release from work at any time. If, of course, the employer gives his consent and the work process at the enterprise does not suffer from this. This is a safety net for parents of frequently ill children, a chance for young fathers to be close to their family in the first days of their child’s life, and freedom for those who love to travel. You just need to remember that abuse of this right can have a negative impact on the employee’s reputation.

Leave without pay is an unpaid leave granted to employees for good reasons (Article 76 of the Labor Code). Leave without pay is often called additional leave because it is provided in addition to annual paid leave. Such leaves are provided for various reasons and have different purposes. During unpaid leave, the employee retains his place of work (position). This means that during the vacation period he cannot be fired at the initiative of the administration (except in cases of complete liquidation of the organization) or transferred to another job. Leave without pay is usually divided into those that: a) the administration is obliged to provide at the request of the employee; b) are given at the discretion of the administration (i.e. the employee may be denied such leave). IN Lately Another type of leave has appeared: “forced leave” without pay due to the deterioration of the financial and economic situation of enterprises. All cases when, at the request of an employee, they are obliged to provide him with unpaid wages are listed in laws and other regulatory legal acts. At the same time, the maximum duration of such vacations is also indicated. Thus, at the request of the employee, she must provide unpaid leave: to women - to care for a child until he reaches the age of 3 years (Article 167 of the Labor Code). establishes that this leave can be used not only by the mother, but also by the child’s father, grandmother, grandfather or other relatives actually caring for the child. Moreover, part of the leave can be used by one relative, part by another, etc.; for women with two or more children under 12 years of age - up to 2 weeks per year. This leave is provided to women in agreement with the administration during the period when production conditions allow. It may coincide with annual leave or used separately in whole or in parts. Transferring this leave to the next year is not allowed. The procedure and conditions for granting this leave also apply to men raising children without a mother, as well as to guardians (trustees) of minors (Article 1721 of the Labor Code); it is provided to employees - Heroes of the Soviet Union, Heroes of the Russian Federation, full holders of the Order of Glory, Heroes of Socialist Labor and full holders of the Order of Labor Glory - for up to 3 weeks a year at a time convenient for them; employees admitted to entrance exams to higher and secondary specialized educational institutions - for 15 and 10 calendar days, respectively, as well as employees studying on the job at preparatory departments at higher education institutions educational institutions, for passing final exams - for 15 calendar days; for employees working in the Far North and equivalent areas - for the duration of travel to the place of use of vacation and back once every 2 years; employees who are old-age pensioners or disabled people of groups I and II - up to 2 months a year; war and labor veterans, veterans of military operations on the territory of other states, including disabled people - from 2 weeks to 1 month a year; employees in case of illness - for 3 days during the year. without pay for a period of up to 3 days per year is provided at the personal request of the employee without presenting medical documents certifying the fact of the disease; in other cases specified by law. Laws and other regulatory legal acts provide for a number of grounds when the administration may, but is not obligated to, provide unpaid leave at the request of an employee. For example, long-term leave without pay for a period of no more than 1 year can be granted to civil servants. Article 76 of the Labor Code states that short-term leave without pay can be granted to an employee at his request for family reasons and other valid reasons. Whether the reason is valid is decided by the administration. The duration of the vacation is also determined by agreement of the parties. Valid reasons are usually recognized: joining, funeral of close relatives, seeing off a son for military service, etc. Collective agreements often stipulate the reasons why employees are granted short-term vacations, and sometimes also determine the timing of such vacations. A collective agreement may establish a rule regarding mandatory provision leave without pay for family reasons at the request of the employee. The duration of such short-term holidays, about which we're talking about in Article 76 of the Labor Code, is not defined in the normative manner. It depends on the production’s ability to do without this employee and on the reason why leave is needed. In all cases of granting leaves without pay, regardless of their purpose and duration, an order (instruction) on leave must be issued. By agreement between the employee and the administration, leave without pay can be subsequently worked out. The possibility of working off and its feasibility, based on production conditions and labor conditions, are determined by the administration. The work agreement and terms of work can be drawn up both when granting leave and subsequently. While on leave without pay, he can interrupt it at any time and return to work, notifying the administration about this. Recently, it has become a common occurrence that organizations suspend their work for quite a long period of time due to lack of funds and material resources, and the administration is forced to send workers on unpaid leave in order to prevent mass layoffs and save. The initiative to provide such leaves comes from the administration, and not from the employees. IN similar situations employees are faced with a choice: either dismissal due to the liquidation of the organization, reduction in headcount or staff, or unpaid leave. Such “forced leaves” without pay are not provided for by labor legislation, and the procedure for their registration is not regulated by law. Therefore, in these cases it is necessary to be guided general rules and, in particular, Article 76 of the Labor Code, which provides that unpaid leave is granted upon the employee’s request. Therefore, before issuing an order to grant all employees or a group of employees unpaid leave, it is necessary to obtain an application from each of them requesting such leave, indicating its duration. Thus, the employee expresses his or her request for unpaid leave for a certain period. After all, according to the law, without the employee’s consent, he cannot be sent on leave without pay. For the purpose of material support for workers in unpaid leave in connection with the forced temporary cessation of the organization’s work, they may establish compensation payments from the funds of the State Employment Fund of the Russian Federation, allocated by the employment authorities at the location of the organization on a non-refundable or repayable basis. Financial resources for compensation payments are allocated to organizations that are in a difficult financial and economic situation for objective reasons beyond the control of the administration, and are not provided to organizations that are duly declared insolvent or in respect of which a decision has been made to appoint external management or sanctions by an authorized body. The conditions for the provision and amounts of compensation payments are established by the Regulations on the procedure and conditions for the provision of compensation payments to employees on leave without pay due to the forced temporary cessation of work of organizations, approved. by order of the Federal Employment Service of the Russian Federation dated March 6, 1995 No. 44. Compensations are paid to employees who are on the staff of the organization and do not receive an old-age pension, including preferential pensions established by law. Compensation payments may be provided from the first day the employee is on forced leave without pay. The duration of the period for paying compensation to each employee is determined by the administration depending on the amount of funds allocated from the Employment Fund, but should not exceed 4 months (consecutive or in the sum of calendar months) during the calendar year. In districts and localities where regional coefficients for wages are established, compensation payments are calculated taking into account the regional coefficient. Compensation payments are not provided to employees employed in seasonal and temporary work, part-time workers, as well as persons working for citizens under agreements (contracts). From funds allocated to organizations on a non-refundable basis, compensation is paid in the amount of the minimum wage established by federal law. Employment authorities have the right to increase the amount of compensation payments to employees up to 3 times the minimum wage, subject to their participation in work organized by executive bodies state power(local government) of a given territory or the organization itself.

Dictionary of business terms. Akademik.ru. 2001.