FAQ

Often, by the time of dismissal, it turns out that the employee still has unpaid vacation. In this case, he needs to calculate and pay compensation (Article 127 of the Labor Code of the Russian Federation).

If an employee has worked for less than half a month, no compensation is paid.

QUESTION: Do we understand correctly that an employee who was hired on February 1, 2011 and quits on February 11, 2011 does not need to be paid compensation for vacation?

N.M.Somova, Tula

ANSWER: Correct. Compensation is paid in proportion to the time worked. In this case, the time worked may include full and partial months. If the month is incomplete and the employee worked less than half the month, he is not entitled to compensation for such a month. And if he worked for half a month or more, then for such a month you need to pay compensation as for full month(Article 423 of the Labor Code of the Russian Federation, paragraphs 28, 35 of the Rules on regular and additional leaves, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169). But please note that we're talking about not about the calendar month, that is, about the period from the 1st to the 30th (31st) (in February - to the 28th (29th)) day of the month inclusive. When determining the right to payment of compensation for unused vacation months worked must be taken into account. That is, from the moment you start working until this date next month. For example, if an employee was hired on January 24, 2011, then the month he worked will expire on February 23, 2011. If this employee quits on at will On February 9, 2011, he needs to be paid compensation for unused vacation, since he worked in the organization for 17 calendar days, that is, more than half a month. In your case, the time worked accounts for 11 calendar days. This means there is no need to pay compensation.

Warn the employee

If an employee has worked for you for less than 15 calendar days, then he is not entitled to compensation for vacation.

We calculate compensation when more than half a month has been worked

QUESTION: The employee with summarized working hours was hired on February 1, 2011, his last day of work was February 16, 2011. He worked all shifts as scheduled. For the time worked, he was credited with 20,680 rubles. The duration of vacation for an employee is 28 calendar days. How do we calculate compensation for unused vacation?

O.A. Vasilyeva, Tomsk

ANSWER: The employee is indeed entitled to compensation, since he worked in your organization for 16 calendar days, that is, more than half a month. Time worked must be rounded up to 1 month (Article 423 of the Labor Code of the Russian Federation; clauses 28, 35 of the Rules on regular and additional leaves).

The procedure for calculating compensation for workers with summarized accounting of working hours is exactly the same as for other workers (Article 139 of the Labor Code of the Russian Federation; clauses 1, 2, 4, 9, 10 of the Regulations on the specifics of the procedure for calculating average wages, approved. Decree of the Government of the Russian Federation dated December 24, 2007 N 922 (hereinafter referred to as the Regulations):

Compensation for unused vacation provided in calendar days = Amount of accrued wages for the billing period: Estimated number of calendar days for the billing period x Number of unused calendar days of vacation during work in the organization (1)

Step 1. Determine the number of unused vacation days in calendar days:

Number of unused calendar days of vacation during work in the organization = Number of months of work in the organization x Number of vacation days due to the employee per year: 12 months (2)

In your case, the employee is entitled to compensation for 2.33 days (1 month x 28 days / 12 months).

Note

Rounding the number of unused vacation days is not provided for by law, but is not prohibited either. According to the Ministry of Health and Social Development of Russia, the organization has the right to decide on rounding (Letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 N 4334-17). But in this case, rounding can only be done in favor of the employee, for example, 2.33 - up to 3 calendar days. Otherwise, the employee’s position worsens (Articles 8, 9 of the Labor Code of the Russian Federation).

Step 2. Determine the salary amount.

Your employee did not have a salary in the billing period (February 2010 - January 2011) because he was not yet working for your organization. Therefore, to calculate compensation, you need to take the salary for the days worked by the employee before dismissal (Clause 2, 7 of the Regulations), that is, 20,680 rubles.

Step 3. Determine the estimated number of calendar days.

This should be done not for the billing period, but for the month of dismissal (February 2011), since the employee did not work for you during the billing period. It is determined in the same way as for an incompletely worked month of the billing period (Clause 10 of the Regulations):

Estimated number of calendar days = 29.4 days. : Number of calendar days in an incomplete month x Number of calendar days falling on the time worked by an employee in an incomplete month (3)

For the time worked by the employee in February 2011, the estimated number of calendar days will be 16.8 days. (29.4 days / 28 days x 16 days).

Step 4. Determine the amount of compensation for unused vacation. The compensation you need to pay to the employee is calculated using formula (1):

RUB 20,680 / 16.8 days x 2.33 days = 2868.12 rub.

Forced absenteeism is included in the vacation period,but not taken into account for compensation

QUESTION: The employee was fired at the initiative of the employer on November 22, 2010. He went to court. By court decision, he was reinstated at work with pay for forced absence from November 23, 2010 to February 7, 2011. On February 11, 2011, the employee resigned of his own free will. Is it necessary to include the period of forced absence into the vacation period when calculating compensation for unused vacation? Is this period included in the calculation period for calculating compensation?

E.V.Utkina, Smolensk

ANSWER: You need to include the time of forced absence from November 23, 2010 to February 7, 2011 in your vacation experience (Article 121 of the Labor Code of the Russian Federation).

That is, when determining the number of days of unused vacation for which compensation must be paid, take this period into account.

But when calculating compensation, this time and the amount of payment for forced absence must be excluded from the billing period. After all, the time of forced absence is paid according to average earnings (Article 394 of the Labor Code of the Russian Federation). And all periods paid according to average earnings, with the exception of breaks for feeding the child, must be excluded from the billing period (Subclause “a”, clause 5 of the Regulations).

This was confirmed to us by the Russian Ministry of Health and Social Development.

Kovyazina Nina Zaurbekovna, Deputy Director of the Department of Wages, Labor Safety and Social Partnership of the Ministry of Health and Social Development of Russia:

“The period of forced absence is always paid based on the employee’s average earnings (Article 394 of the Labor Code of the Russian Federation). And the periods when the employee is paid average earnings, are excluded from the billing period for calculating average earnings (Subclause “a”, clause 5 of the Regulations). Therefore, the period of forced absence and the amount of payment for it are not included in the calculation of average earnings.”

If the day of dismissal is the last day of the month,then we include this month in the billing period

QUESTION: An employee resigns of his own free will. His last day of work falls on February 28, 2011. Should February 2011 be included in the calculation period for paying him compensation for unused vacation?

E.A. Tandelova, Ufa

ANSWER: It is necessary. The billing period for compensation is 12 full calendar months, preceding the period paid in the amount of average earnings. If the day of dismissal, that is, the last day of work, coincides with the last calendar day of the month, then this month is full and must be included in the billing period (Article 139 of the Labor Code of the Russian Federation; Letter of Rostrud dated July 22, 2010 N 2184-6-1).

Therefore, in your situation, the estimated period will be “March 2010 - February 2011”.

Compensation for minors working for up to 2 monthsis considered to be a more profitable option for them

QUESTION: We hired a minor under a fixed-term employment contract (from February 1 to February 28, 2011) with a salary of 5,000 rubles. Workers under the age of 18 are entitled to leave of 31 calendar days. At the same time, employees who have entered into an employment contract for a period of up to 2 months are entitled to vacation at the rate of 2 working days per month of work. How many days does our employee need to pay compensation for unused vacation: 2 working days or at the rate of 31 calendar days per year of work?

S.M. Kirillova, Moscow

ANSWER: In your case, both of these norms apply to a minor employee (Articles 267, 291 of the Labor Code of the Russian Federation). Therefore, you need to determine when the compensation amount will be higher.

Step 1. Determine the amount of compensation for unused vacation as for an employee under the age of 18.

We determine the number of vacation days for which the employee is entitled compensation for leave upon dismissal, based on the fact that he, as a minor, is entitled to leave of 31 calendar days per year of work (Articles 139, 267 of the Labor Code of the Russian Federation; clauses 9, 10 of the Regulations), according to formula (2):

1 month x 31 days / 12 months = 2.58 days

Since the minor employee worked completely in February 2011, he is included in the calculation period “March 2010 - February 2011”. And the estimated number of calendar days for the billing period is 29.4 days. (Clause 10 of the Regulations).

The amount of compensation for unused vacation is determined by formula (1):

2.58 days x 5000 rub. / 29.4 days = 438.78 rub.

Step 2. We determine the amount of compensation for unused vacation as for an employee who has entered into a fixed-term employment contract for a period of up to 2 months.

We calculate compensation at the rate of 2 working days per month of work (Article 291 of the Labor Code of the Russian Federation; clause 11 of the Regulations):

Compensation for unused vacation provided in working days = Amount of accrued salary for the billing period: Number of working days according to the six-day calendar working week for the billing period x Number of working days of vacation (4)

The amount of compensation for unused vacation with this calculation will be:

RUR 434.78 (5000 RUR / 23 days x 2 days).

Step 3. Compare the amounts received.

In your situation, you need to pay compensation to a minor employee at the rate of 31 calendar days per year of work, since its amount is larger.

But in another situation, the amount of compensation may be greater at the rate of 2 working days per month. Therefore, in any case, you will have to calculate both compensations and choose the one whose size is larger.

Part-time workers are also entitled to compensationfor unused vacation

QUESTION: We hired a part-time worker under a fixed-term employment contract. Is it necessary to pay such an employee compensation for unused vacation upon termination? employment contract with him?

A.D. Voronova, Chelyabinsk

ANSWER: It is necessary. is also due to part-time workers working under a fixed-term employment contract, as well as to any other employees (Article 287 of the Labor Code of the Russian Federation).

We always fire an employee on a working day

QUESTION: The employee submitted his resignation on February 7, 2011. Do we understand correctly that he must be fired on Friday, February 18, 2011, since the two-week notice period expires on Sunday, February 20, 2011?

T.A. Ivanova, Suzdal

ANSWER: No, that's not correct. The notice period for dismissal must be counted from the day following the day the employer receives the employee’s resignation letter (Article 80 of the Labor Code of the Russian Federation). Therefore, if the employee submitted the application on February 7, 2011, the two-week notice period will not expire on Sunday, February 20, 2011, but on Monday, February 21, 2011.

Advise the employee

If an employee wants his last day of work to be Friday, then a resignation letter of his own free will must be submitted two weeks in advance, but not on Monday, but also on Friday.

But if, after all, 2 weeks after the employee gave notice of dismissal expired on a day off, then you would need to fire the employee on the next working day following the last day of the notice period (Article 14 of the Labor Code of the Russian Federation).

It may turn out that Sunday is your working day. Then you fire the employee on Sunday, that is, on the last day of the notice period.

Any vacation compensation must be accruedinsurance premiums

QUESTION: An employee has a vacation of 56 calendar days. In January 2011, at the request of the employee, we paid him compensation for part of the unused vacation for 2010. Do I need to charge insurance premiums for it?

M.I.Demina, Ryazan

ANSWER: It is necessary. You pay compensation for part of the vacation for 2010 in 2011. And from January 1, 2011, any compensation for vacation (both upon dismissal and at the request of the employee without dismissal) must be charged insurance premiums, including contributions “for injuries" (Subclause "and" clause 2, part 1, article 9 of the Federal Law of July 24, 2009 N 212-FZ "On Insurance Premiums..."; subclause 2 of clause 1 of Article 20.2 of the Federal Law of July 24, 1998 N 125 -FZ “On compulsory social insurance against accidents at work and occupational diseases”).

An employee is entitled to full vacation per working year.

QUESTION: Do we understand correctly that an employee who was hired on March 1, 2010 and quits on February 1, 2011, if he took a full vacation (28 calendar days), does not need to withhold anything for unworked vacation days?

E.I. Krasikova, Serpukhov, Moscow region

ANSWER: Wrong. Although your logic is clear. Annual leave is included in the length of service giving the right to leave Art. 121 Labor Code of the Russian Federation. At the time of dismissal, the employee’s length of service in your organization was 11 months, including vacation. This means that he is entitled to full leave. 423 of the Labor Code of the Russian Federation, clause 28 of the Rules on regular and additional leaves.

However, an employee is entitled to full leave not for 11 months of service in your organization, including vacation, but for a working year, that is, for 12 months of service in your organization, including vacation Art. 115 Labor Code of the Russian Federation.

Therefore, in your case, at the time of dismissal, the employee had not worked 1 month towards the vacation provided to him in advance. And you can (but are not obligated) to withhold from him the overpaid amount of vacation pay for 1 month unworked at the time of dismissal, that is, for 2.33 days Art. 137 Labor Code of the Russian Federation.

After the dismissal order has been issued, the question arises: what payments upon dismissal does the law provide for? The Labor Code of the Russian Federation contains rules regarding monetary compensation upon dismissal for vacation that was not used, severance pay and wages for time worked. Payment of money after dismissal must be made within a period not exceeding three days after the order is issued.

Amount of compensation upon dismissal

The dismissal procedure consists of several stages:

1. Writing an application (if it is at your own request).
2. Issuance of an order.
3. Payment to the employee and issuance of a work book.

So, what happens when you resign at your own request?

The employee has the right to claim the following payments:

• salary for hours worked;
• compensation for vacation that was not used;
• thirteenth salary (if this is stated in the local acts of the organization).

Compensation for vacation that was not used by the employee must be made according to the following formula:

K-compensation for vacation that was not used by the employee;

M is the average daily salary of the employee;

N is the number of vacation days.

N is defined as follows:

2.33*number of months worked for which vacation was not granted.

For reference! This formula has been approved by the Ministry of Labor of the Russian Federation and is used, as a rule, to calculate regular calendar holidays of 28 days. If we are talking about longer holidays, we recommend contacting the labor inspectorate for clarification or dividing total vacation days by the number of months worked. In addition, the month in which less than half of the days were worked is not taken into account.

M is defined as follows:

M=C/12*29.4, where

C is the employee’s total income for the calendar year that preceded the dismissal.

Payments to an employee upon dismissal of his own free will and for other reasons must be made on time. The legislator establishes a rule according to which the employer pays the employee compensation in the amount of at least 1/300 of the refinancing rate, which is established by the Central Bank of the Russian Federation on the day of accrual in the event that he did not pay the dismissed employee on time.

Compensation is calculated as follows:

K= C/100%*1/300*S*D, where

K-compensation;

C-refinancing rate;

S-sum owed by the employer to the employee;

D is the number of days of delay.

At the same time, the calculation of payments upon dismissal will not be affected by what remuneration system is used in the company: salary, piecework, based on hourly, daily or monthly tariff rates. However, all these systems still have their own characteristics when calculating. Therefore, the above formulas are applicable to the extent that they do not contradict the law and correspond to the remuneration system at the enterprise.

Deadline for settlement with a dismissed employee

Payment of money upon dismissal, in accordance with the provisions of Art. 140 of the Labor Code of the Russian Federation, is carried out on the last day of work of a citizen. But if the employee was absent from the workplace on the last day, then no payment is made to him. later in the day, which follows the day the employee applies for payments. If the parties do not reach agreement on the final amount, then the employer is obliged to pay that part of the money that he does not dispute.

When an employee goes on vacation with subsequent dismissal, that is, he no longer intends to work at the enterprise, then the payday will be considered the last day before the vacation. The employer is obliged to give the employee work book and accrue all payments.

If an employee is on sick leave and decides to quit, then he has the right to write a statement on any day. The employer pays him on the last day of work, even if it falls on sick leave.

Difference between compensation and severance pay

Severance pay will not be related to salary, since its size is in no way related to the quality and duration of the employment relationship. Moreover, the benefit is not a compensation payment. Benefit is monetary allowance, which temporarily replaces wages or serves as a supplement to the basic income, or acts as assistance due to the lack of a source of income. Severance pay is paid only from the employer’s funds and in no case will relate to social benefits which are carried out at the expense of the state. Despite the common legal basis - dismissal, benefits and compensation, the circumstances of payments have different circumstances. In particular, if we are talking about compensation, then it is due to all employees, regardless of the reason for dismissal. For example, compensation for unused vacation will be paid to a citizen even if he was fired due to staff reduction or at his own request. But in order to get severance pay, it is necessary to get into certain legal situations, the list of which is established in the Labor Code of the Russian Federation. For example, dismissal due to the liquidation of the company or refusal to transfer to another location.

The second difference between compensation and benefits is that, as a rule, the amount of severance pay is established in the Labor Code of the Russian Federation - average monthly salary, etc.; but the amount of compensation for unused vacation has only a calculation formula, but the result may be different, since it is not known in advance for what period the employee did not take vacation, etc.

Thus, dismissal of an employee without payment of benefits is possible, but without compensation - in exceptional cases.

Amount of severance pay upon dismissal

The legislator in Article 178 of the Labor Code of the Russian Federation provided for certain cases dismissals payment of severance pay to employees in a certain amount. In particular, these include the following:

1. Average earnings for 2 weeks:

• if a citizen refuses to transfer to another job that is assigned to him due to health reasons or if the employer does not have such a job;
• when conscripted into military or alternative civilian service;
• when reinstating an employee to the job he previously performed;
• if a citizen refuses to be transferred to another area if the employer moves there;
• when the terms of the contract change and the employee subsequently refuses to continue working under such conditions;
• when an employee is issued a certificate from a medical organization stating that he cannot continue working;
• if a citizen is employed in seasonal work, but the employing organization was liquidated or there was a reduction in staff.

1. Average monthly earnings are paid in the following cases:

• liquidation of the enterprise;
• staff reduction;
• in case of violation of the procedure for concluding an employment contract on the part of the employer, if such violations do not allow further continuation of work.

For reference! Employees who work in organizations located in the Far North are treated the same as all other residents of the Russian Federation in matters of severance pay.

1. Three months' average earnings will be paid in the following cases:

• upon termination of an employment contract with the head of the company, his deputy, or the chief accountant due to the fact that the owner of the enterprise has changed;
• upon termination of an employment contract with the head of the organization by decision of the authorized body in the absence of guilty activities on his part.

Severance pay, the payment of which is provided for by the legislator (in the amounts established by the Labor Code of the Russian Federation), is not subject to personal income tax and other taxes. However, if a citizen pays alimony, then it is collected from the amount of the benefit.

An example of severance pay upon liquidation of an organization.

1. On the last working day, a citizen receives 1 average monthly salary. Moreover, the amount of payments does not depend on whether the employee gets a new job.
2. At the end of the 2nd month after dismissal, the employee can bring the employer a work book that does not contain a note about new employment and receive another average monthly salary.
3. At the end of the 3rd month, the benefit will be paid if two conditions are simultaneously met:

• the citizen, no later than 14 days after he resigned, registered with the employment service;
• They didn't find a job for him in 3 months.

Severance pay upon dismissal by agreement of the parties

The employee and employer have the right to sign an agreement that determines the conditions for terminating the employment relationship. In the document, the head of the company has the right to assign any amount of severance pay to the employee at his discretion.

Now let's take a look this question in details.

Let's start with the fact that the agreement by which the employment contract is terminated is not an integral part of it; That is why, if the text of the contract or the collective labor agreement does not indicate severance pay, the amount of which is determined by the employer, then taxes will be charged on this payment.

What to do?

1. Include in the text of the employment contract the wording according to which the employer has the right, when dismissing an employee, to assign him severance pay in any amount. If the contract has already been concluded, we draw up an additional agreement to it. In this case, the text of the document may indicate a specific amount of benefits (for example, 50,000 rubles) or its link to salary or other payments (for example, in the amount of 5 salaries).
2. Indicate the severance pay and its amount in the collective labor agreement.

We remind you once again that the payment should be called only severance pay and nothing else, since judicial practice There were various names, for example, compensation upon dismissal by agreement of the parties, etc.

Changing jobs occurs with varying frequency in the lives of many people. At the same time, dismissal from the previous place implies a full payment, which includes compensation for unused vacation, issued by a special order. Alternatively, the employee can take the remaining days off followed by dismissal. Labor legislation Russia strictly regulates the rules by which such compensation is calculated.

Is it possible to receive compensation for unused vacation?

Every employee who has worked for the organization for more than six months has the right to leave. As follows from Article 127 Labor Code, upon dismissal, each employee is entitled to compensation for unused vacation. Since this is a legal requirement, there should be no obstacles to the exercise of this right. If an employee has the right to several vacations, then compensation for the main and additional periods must be summed up. Do the same if transfer occurs annual leave next year to extend the holiday.

What is compensation for unused vacation?

From a financial point of view, vacation compensation upon dismissal is the monetary equivalent of vacation pay that an employee could receive in the organization while resting as expected. The size of the payment will be determined by the number of days of rest and the average daily salary, and there are special formulas for calculation. Although a person has the right to rest only after six months of work experience in one place, he can receive compensation after just half a month of work. Upon dismissal, instead of financial compensation, the employee, upon his application, may be provided due leave.

When is it paid?

Dismissal is not the only reason when an employee will be paid for unused rest days. The Labor Code considers two situations when an employee must be paid monetary compensation for vacation:

• upon his dismissal, which means termination of the employment contract;
• in the case where additional leave is involved and the employment relationship continues, at the initiative of the employee, he can receive monetary compensation.

Compensation for additional leave is not paid in all cases. According to Article 126 of the Labor Code of the Russian Federation, such a replacement is not provided for:

• pregnant women;
• workers under 18 years of age;
• employed in harmful (or dangerous) working conditions.

This approach of legislators can be considered fair, because in this case an additional vacation period of more than 28 days is provided to ease working conditions, and not to improve financial situation through compensation payments. That is why it is necessary to use this time as a break from work, to improve your health, and the Labor Code of the Russian Federation strictly insists on this.

Compensation amount

For those who do not know how to calculate compensation for unused vacation, it may seem like a complicated process that only specialists can do. But you can easily calculate this yourself using an online calculator by entering all the necessary indicators there, or by resorting to the formula KO = KDO x SDZ = KDO x (Salary / (OM x 29.3)), where:

• KO - compensation for unpaid vacation.
• KDO – number of days of rest. It is calculated based on the calculation of 28 days per year worked (or 2.33 days per month - Rostrud speaks about this in Letter No. 5921-TZ dated October 31, 2008).
• SDZ – average daily salary.
• Salary – accrued for the billing period wage, taking into account all allowances, surcharges and bonuses.
• OM - the number of months worked (the rule applies that if the fractional part is less than half, the number will be rounded down, otherwise - up). Important nuance– according to paragraph 5 of the Government of the Russian Federation No. 922 dated December 24, 2007, time of illness and business trips is excluded from the calculation.
• 29.3 – average monthly number of calendar days.

How to calculate

Knowing the calculation scheme, you will always have the opportunity to calculate the replenishment - you just need to substitute it into the formula specific values. For example, a person with a salary of 50,000 rubles worked in the organization from September 1, 2016 to July 1, 2017 and is planning to quit (in total, they worked for 10 months, for which they earned 600,000 rubles). Using the formula, it is easy to find the result: KO = (2.33 x 10 months) x (500,000 rubles / (10 months x 29.3) = 39,761.09 rubles.

How to get

A resigning employee should not worry about how to receive compensation for unused vacation - it is accrued along with final settlement for delivery on the last working day. Depending on the rules of the organization, this may be a transfer to a bank account or issuance at the cash desk. At the same time, do not forget that compulsory pension (insurance and medical) insurance contributions are charged as usual for compensation for unused vacation.

Cash compensation for unused vacation without dismissal

The Labor Code states that the employer can independently establish additional leaves - the procedure for providing such leave must be determined collective agreement. But for some categories of employees, an additional period is legislated in Article 116 of the Labor Code of the Russian Federation. This includes workers:

• workers in harmful or dangerous conditions;
• having irregular working hours;
• with a special nature of work (for example, mobile or traveling);
• employed in the Far North.

Statement

In order to receive the compensation required by law for an unclaimed vacation period (both upon dismissal and upon continuation of work), the employee must contact the employer with an application. There is no legally established form, but the document must contain:

• The heading section, which indicates that this is an application for reimbursement for unused vacation.
• The position of the manager, his last name and initials.
• The basis for payment is Article 126 of the Labor Code of the Russian Federation.
• The length of the vacation period in days - you can calculate it yourself, or contact an accountant.
• Applicant's title, date and signature.

Sample order to replace vacation with monetary compensation

As in the case of an application to receive payment for unused vacation, there is no established order form, but the following must be present there without fail:

• position, surname and initials of the employee who is entitled to compensation,
• link to the relevant article of the Labor Code of Russia;
• the number of calendar days subject to compensation and the period for which they are taken;
• basis – reference to the employee’s statement.

Features of calculating compensation in some situations

Non-standard calculation situations can confuse an accountant, but there is nothing complicated here - all these cases are dealt with in detail in the legislation. The following examples are the most common:

• For part-time workers, the amount of compensation and the calculation procedure will be the same as for the main employees of the organization (the legislation does not distinguish between them). But those who have entered into a civil contract are not entitled to compensation.

• A maternity leaver who quits while on maternity leave should be given compensation if she has unused days left. In this case, the average monthly salary is calculated based on the last 12 months worked.
• When an enterprise is liquidated, all employees (even those in maternity leave), the calculation of compensation for unprovided leave does not differ from the standard option.

Non-payment or underpayment of compensation

The legislation provides for administrative liability of managers and responsible employees if compensation for unclaimed leave by an employee is provided untimely or in incomplete amount. In accordance with the Code of Administrative Offenses (Part 6, Article 5.27), the fine is:

• general director – from 30,000 to 50,000 rubles;
• chief accountant - from 10,000 to 20,000 rubles;
• individual entrepreneurs– from 1,000 to 5,000 rub.

The employee must contact the labor inspectorate with a statement, which should reflect the current situation. You must write down the period for which the main (or additional) vacation is due, as well as your income during this time. After checking for compliance with the above, the labor inspectorate will oblige the manager to provide you with the amount due, and additionally, compensation for delayed payments (Article 236 of the Labor Code of the Russian Federation).

Video

Each employee has the right to annual paid leave of 28 calendar days. This right arises after six months of working for one employer.
Vacation is provided according to a schedule that must be approved no later than December 15 of the current year for the next year. The right to use does not depend on calendar year, but from the working year, that is, from the moment the employee is hired. This is stated in the letter of Rostrud dated December 18, 2012 No. 1519-6-1.

If he was hired on November 15, 2017, then the right to use full vacation arises six months later, that is, from May 15, 2018. In this case, the employee can “walk” for 28 calendar days, but he will receive “Vacation Pay” in proportion to the time worked.
He will have the right to full vacation and full “vacation pay” only after 11 months of work, that is, from October 14, 2018.

In addition to the main vacation, there is also an additional one. It is provided to certain categories of workers. For example:

• workers of the Far North and territories that have a similar status;
• workers working in hazardous working conditions;
• workers with hazardous working conditions;
• other categories of workers listed in Art. 116 Labor Code of the Russian Federation.

Both basic and additional leave are paid. The amount of vacation pay depends on the employee’s average earnings for Last year. According to Art. 139 of the Labor Code of the Russian Federation, to calculate the average salary, all labor payments to an employee for the last calendar year are taken into account.

An employee has the right to receive compensation for unused vacation only in two cases:

• upon dismissal for all unused vacation days;
• without dismissal for vacation days exceeding 28 calendar days. This is stated in Art. 127 Labor Code of the Russian Federation.

The amount of compensation for unused vacation depends on the number of days and the employee’s average earnings for the last year. The average salary of an employee for the year is calculated by dividing the actual salary for the year by 12 months and by a constant number of 29.3 - this is the average number of days in a month.

For example, an employee has 6 days of unused vacation in 2018. Over the last year, his total salary was 420,000 rubles.
The average daily salary of this employee is (420,000 / 12) / 29.3 = 1,194.5 rubles per day
For 6 days of unused vacation, he will receive 1,194.5 * 6 = 7,167.2 rubles.

Is it possible to receive compensation for vacation and continue to work? An employee can only receive compensation for unused additional vacation. To do this, he must write an application addressed to the employer or a person authorized by the employer to sign such applications.

The application is written in free form. If your company has developed an application form, you must use it. The application must contain the following information:

• In the upper right corner you must indicate information about the employer and the applicant:
  • the position of the employer's representative who has the right to sign such statements, and his full name. For example: “To the General Director of Petarda LLC, K.P. Silyanov”;<\li>
  • position and full name of the applicant. For example: “From the programmer M.E. Uvarov”;
• Next, in the center you need to write the word “Statement”;
• Then the “body” of the statement. Here you need to indicate the main text, that is, a request to replace unused vacation days with monetary compensation. Also here you need to indicate the reason why the additional leave arose, its duration and period. You also need to indicate Art. 126 of the Labor Code of the Russian Federation, on the basis of which such a right arises for the employee;
• Then the date of application and the signature of the employee himself.

Based on the application, the personnel officer issues an order and sends an order for payment of compensation to the accounting department. The employee must read the order and put his signature on it.

Payment of compensation is made within 10 days after acceptance of the application or on the day of payment of the next salary.

Replacing a vacation that does not exceed 28 calendar days with monetary compensation is prohibited by law. But some employers accommodate employees halfway and pay them such compensation for those vacations that employees “did not take off” in previous years.
Since this is prohibited by law, at the very first inspection by the labor inspectorate, the employer, as entity, a fine will be imposed in accordance with Part 1 of Art. 5. 27 Code of Administrative Offenses of the Russian Federation in the amount of 30 thousand rubles, and for general director, as an official - the fine will be from 1,000 to 5,000 rubles.

The decision to pay compensation is made by the employer. This is his right, not his obligation. This is stated in Art. 126 of the Labor Code of the Russian Federation, as well as in the letter of Rostrud dated March 1, 2007 No. 473-6-0.

The Labor Code of the Russian Federation fixes the right of workers to annual leave, which the employer must pay. Such leave is called the main one, its duration is specified in Art. 115 TK and equal to 28 calendar days.

For certain groups of workers (disabled people, doctors, teachers, etc.) extended basic leave is provided. But cases when an employee does not complete the main vacation or does not go on it at all due to professional workload or other reasons are quite frequent.

If during a calendar year an employee does not use his right to vacation or rests for less than the 28 days required by law, he is entitled to financial compensation from the employer (Article 127 of the Labor Code of the Russian Federation).

The basis for payment of compensation is a written application from the employee.

At the same time, the law does not allow compensation for basic annual leave for certain categories of workers. For them, only proper rest is provided:

• minor employees;
• pregnant women;
• participants in the liquidation of the consequences of the Chernobyl accident.

When is this payment calculated?

For delayed wages, the employee is entitled to compensation. You will learn how to calculate it in.

What to do if compensation is not accrued on time or not accrued at all?

Compensation for unused basic leave must be paid on the last working day. If he did not work that day, then compensation and other payments due to him will be reimbursed. no later than the next day. Delays are a direct violation by the employer of the provisions of the Labor Code, while liability for delaying compensation payments is no less lenient than for not accruing them at all.

In Art. 236 of the Labor Code of the Russian Federation establishes a mechanism for calculating penalties for late compensation payments. If the terms of compensation for unpaid leave are violated, the law obliges the employer to pay the required amount with interest, the amount of which is not less than 1/300 of the current Central Bank refinancing rate. A penalty is charged for each day of delay in payments, starting from the first day of delay until the date of actual settlement.

In addition to the accrual of interest, the employer faces administrative liability for violating the requirements of Art. 127 and art. 140 Labor Code of the Russian Federation. According to the provisions of Art. 5.27 of the Administrative Code, such violations are punishable by fines:

• from 1 to 5 thousand rubles – for officials;
• from 30 to 50 thousand rubles. - for legal entities.

Instead of a fine, suspension may become a preventive measure entrepreneurial activity relevant administrative acts for a period of up to 90 days.

An employee can restore justice in court at the actual location of the enterprise where he previously worked. The employee has the right to apply to the court with a statement of claim to recover the unpaid additional payment for unused benefits for 3 months. from the date of dismissal. In parallel, the law allows for the possibility of demanding compensation for moral damage caused by the fault of the employer in accordance with the rules of Art. 237 Labor Code of the Russian Federation.