How compensation is provided for unused vacation. Application for compensation payment instead of rest days. Example of an employee statement

The state guarantees every worker the right to rest. The employer must strictly abide by the law and give his employees annual paid leave. Sometimes, instead of free time, workers are compensated for unused vacation... Let's figure out in which cases the days of rest are replaced by a monetary reward and how much an employee has the right to count on.

When an employee is entitled to compensation

The desire of the worker to receive monetary compensation instead of legal time off is quite understandable, especially in a difficult financial situation. And sometimes there are people who are interested in spending time at work, so they do not want to take a vacation. But labor protection standards imply the obligatory allocation of days off from work for each employed citizen.

Compensation is only possible in two situations:

1. Without interrupting work, the employee has the right to receive money instead of time off ( Art. 126 of the Labor Code of the Russian Federation).
2. In case of dismissal of a worker, he is guaranteed monetary substitution full leave not received on time ( Art. 127 of the Labor Code of the Russian Federation).

Each of these cases has its own limitations and procedure for reimbursement.

No layoff compensation

The law does not allow replacing the entire vacation period with cash rewards. The employer is obliged to provide rest for the minimum prescribed period of time. This is usually twenty-eight days a year.

But some categories of workers, for example, those employed in the field of education, medicine or working in the Far North, are entitled to additional days of annual paid leave. It is their employee who has the opportunity to exchange for compensation.

Additional rest is also provided for workers with irregular schedules. It is possible to change it for compensation, if this procedure does not contradict the collective agreement and internal orders.

The same rule applies to replace the vacation carried over from previous years. You can change to a cash payment only a period that exceeds the duration of the main paid vacation. It is impossible to reimburse the rest of the time without quitting.

IMPORTANT! The employer is not obliged to substitute cash payments for rest days. He has the right to oblige the worker to rest due date fully. Monetary compensation occurs only by mutual agreement of the parties.

When vacation cannot be replaced by payment

It is not always legal to provide monetary compensation for unused leave, even when the employer agrees to grant the subordinate's request. For medical and humane reasons, such a substitution is prohibited for:

• Women in position.
• Persons who have not reached the age of majority.
• Workers working in difficult and hazardous working conditions. It is not possible for them to pay compensation instead of the additional rest guaranteed to them in connection with the listed factors.

ATTENTION! You cannot receive a refund for study leave, because it is provided upon training and is not considered additional.

Upon dismissal

Upon dismissal, for all unused vacations, both regular and extended, the employee receives a cash payment. It does not matter to which category of workers he belongs, in what conditions he works and on what basis he is fired. This is the only way to get a full refund instead of rest.

If desired, the resigning person can take off all the accumulated days immediately before leaving. You just need to bring a corresponding statement to the personnel department. Then the last day of the vacation will be the moment of calculation. This rule does not apply to those fired for wrongdoing.

All accumulated time off is paid on the day the employee is checked out. Payment due payment carried out according to the rules adopted at the state level.

Calculation of compensation

The compensation paid for unused vacation may vary. For example, it is easier to calculate the amount of payment if you need to pay several days that exceed the main period of rest of the worker than the missed main and additional vacations for a couple of years when he was fired.

Let's consider the general rules for calculating compensation.

Calculation rules

The reimbursement amount is calculated based on the average daily earnings and the number of compensated rest days. When calculating these indicators, the employer's accounting department should be guided by the following principles:

First. Average daily earnings depends on the total amount of accrued salaries during the billing period. This amount includes salary, all bonuses and allowances. The resulting number is divided by the number of days for which this amount was charged, and the desired daily earnings are obtained. When calculating compensation, the following are not taken into account:

• Payments during periods of work while maintaining average earnings, for example, vacation pay and travel allowances.

If the employee did not have earnings in the next billing period, for example, after the decree, the calculation will be made based on the salary.

IMPORTANT! Only the officially accrued salary and payments are taken into account. For recipients of envelope remuneration, the reimbursement is based on the minimum salary.

Second. When determining the number of unpaid days from additional rest, no difficulty can arise. This is usually a single digit number. But to calculate compensation for unused leave upon dismissal, you need to calculate how much of it is left for the entire period of work in this place. It can be a couple of months or several years. Usually the count is done in calendar days. To determine how much rest time an employee who has worked for a couple of months deserves, you need to divide the amount of days of the prescribed annual rest by the number of months in a year. The result will be the number of vacation days that are accrued per month of work. For clarity, we present the obtained data in the form of a table:

If not a whole month has been worked out, but half or more, this indicator is rounded up. When processing less than half a month, this time is not taken into account in the calculation.

IMPORTANT! In case of dismissal on grounds that do not depend on the will of the employee and his professional and business qualities with a work experience of more than five and a half months, compensation is paid for full year... For example, this happens or the conscription of an employee.

There are situations when an employee quits, having walked the allotted time ahead, that is, for the period that has not yet worked. Then the accrued vacation pay is deducted from the last salary.

Thus, the amount paid is equal to the product of the daily earnings by the number of days of unused vacation for the hours worked.

If vacation in working days

The amount of compensation for seasonal workers and those who have concluded an agreement for up to two months is calculated in a slightly different way. The difference is that, according to labor law ( Art. 291, 295, Labor Code of the Russian Federation) time is counted in working days and not in calendar days. Therefore, the number of rest days is equal to twice the number of months worked. This calculation formula is based on the current regulation on the remuneration of this category of workers.

Taxes and fees

The issue of reimbursement of rest days that were not provided to the employee is not bypassed and RF Tax Code... To calculate how much money you can get for unused time off, you need to remember that this amount is subject to taxes and insurance premiums.

The accounting department, before transferring the vacation pay to the employee, will withhold personal income tax and all contributions from the due amount. As a result, the employee will receive much less in his hands than the accountant originally charged.

This expense relates to the company's expenses on salaries of employees and is taken into account when withholding income tax from the organization, but does not affect the amount of compensation for personnel.

How to get compensation

To receive compensation for unused additional vacation, you must write an application addressed to the director of the organization. This can be done by hand or using a computer.

It is important to comply with the basic requirements for filling out the document:

• If the application is written by hand, use A4 paper and a blue pen.
• The header of the document contains information about the company and the data of the employee (name, position).
• The word "statement" is written with a small letter in the center of the line.
• In the text of the request, it is necessary to indicate the articles of the law on the basis of which the request should be granted.
• At the end, the date of preparation of the document and the signature of the author are indicated.

If the director decides to satisfy the employee's request, an order is issued to replace part of the vacation with monetary compensation. The term for payment of compensation depends on the work of the accounting department. According to the rules, the accounting department is obliged to transfer the money to the employee within ten days from the moment the application is accepted or with the next salary.

Compensation for unused leave in the event of termination is paid without a request from the employee. It is enough to have a dismissal order in the accounting department. Employer .

Employer's responsibility

By law, the amount of compensation must be paid in full and on time. In case of violation of this provision, the employer will face an administrative penalty (clause 6, article 5.27 of the Code of Administrative Offenses of the Russian Federation).

He can be fined in the amount of:

• From one thousand to five thousand rubles, if he is an individual entrepreneur.
• From ten to twenty thousand rubles, if the offender is an official.
• From thirty to fifty thousand rubles. for legal entities faces.

If the deadline for the payment of compensation has been violated, then the employee can also receive compensation for the delay.

In addition, in case of serious violations in the implementation of the employee's right to vacation compensation, the perpetrators may be prosecuted. For protection of violated rights, you can contact the labor inspectorate or the court.

Thus, every officially employed citizen has the right to an annual paid vacation and can count on his monetary compensation. The legislation contains a reliable mechanism for the implementation of this legal norm.

People often refer to all the money they receive upon dismissal as severance pay. The exciting situation of changing jobs is always fraught with a bunch of questions from dismissed workers. Therefore, in this article I will answer in as much detail as possible an important question - what will the employee be paid upon dismissal? How payments are calculated, what is fraught with non-payment or delay for the employer in this case, and other related issues.

Severance pay upon dismissal is stipulated by Article 178 of the Labor Code Russian Federation, which is called "Severance Pay" and refers to Chapter 27 "Guarantees and Workers Compensation Related to Termination of Employment".

○ Severance pay upon dismissal.

Severance pay is a sum of money paid in a lump sum upon termination of employment for certain reasons.

If something unpleasant for the employees occurs - the liquidation of the organization or massive reduction number (staff) of employees, in which case the employee is obliged to pay severance pay equal to the average monthly earnings... In addition, he will retain the average monthly earnings for the period of employment, but no longer than two months from the date of dismissal (including severance pay).

EXAMPLE! If an employee of Vasilisa Wonderful wages on average 18,200 rubles a month, and an employee of Zmey Gorynych, 22,660 rubles, both will receive exactly these amounts as a severance pay in case of redundancy.

However, if the enterprise or organization has a collective agreement stipulating that, when dismissing employees in the event of liquidation or reduction of staff, everyone is paid a severance pay of 30,000 rubles, then that amount will be paid to everyone.

IMPORTANT! V labor law along with the Labor Code, other acts act on an equal footing if they improve the position of the employee.

If the downsized employee applied to the employment service body, but was not employed within two weeks (about which he was given the appropriate decision of this body), then, by providing his work book and this decision on its own old job, he can count on the average monthly earnings during the third month from the date of dismissal. But this case is exceptional.

Severance pay in the amount of two weeks average earnings paid upon termination of the employment contract in the following cases.

1. If the employee was issued medical report, which does not allow him to work on the conditions under which he was once hired for this job, while the employer offered a job in another position, and the employee refused (or the employer does not have a suitable vacancy). In this case, the employee is dismissed in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation.
2. The situation may be worse - and the employee, due to some serious health reasons, the Medical and Sanitary Expertise establishes a “non-working” disability group. It turns out that he is completely incapable of work and must be dismissed immediately on the day of issuance of the conclusion due to circumstances beyond the control of the parties, paragraph 5 of the first part of Article 83 of the Labor Code of the Russian Federation.
3. The employee was called for an urgent military service(in this case, the law equates the civilian alternative to this service).

   EXAMPLE!If the employee Ivan Zhukov received a summons, and he honestly went to the army, and before that his average monthly salary was 22,500, then when calculating he will be paid a severance pay in the amount of 11,250. In addition, he will be paid worked wages and compensation for unused vacation ... There will be something to walk off the wires!

4. Practice labor relations quite extensive, and our courts comply with the procedural deadlines, and can make their final decision for a rather long time. Thus, a situation may arise that you are hired to replace the person who has filed a lawsuit against illegal dismissal and reinstatement at their former workplace in the same status.
   And this citizen was restored by the court to his former workplace. Unfortunately for you, as for those working in this place today, the employer is forced to fire you (the basis is clause 2 of part one of article 83 of the Labor Code of the Russian Federation). The weak form of compensation for your suffering in this case is the payment of severance pay.
5. It may happen that the employer is forced to move to another area for a number of reasons. If the employee does not agree to be transferred to work in another locality together with the employer, refuses to move, then, in accordance with paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation, he leaves, and he is paid severance pay in the amount of two weeks' average earnings.

○ Payments upon termination of employment by agreement of the parties.

Payments upon termination of employment by agreement of the parties are not required by law. However, payments and severance pay may be negotiated on the basis of an employment or collective agreement, or the payment may be specified in the termination agreement itself.

EXAMPLE! Having written a letter of resignation by agreement of the parties from OOO Pole Miracles, Basilio's cat agreed (and this was entered into the agreement in writing) that his severance pay would be 5,000 rubles. This amount was added to his salary and compensation for unused vacation.

○ Deadlines for termination benefits.

The term for payment of severance pay upon dismissal is the last working day of the employee when he will be given:

• Wages.
• Compensation for unused vacation.
• Severance pay, if it is stipulated by law or other act (collective agreement, employment contract, agreement of the parties).

IMPORTANT! The sums of money that must be paid to an employee who is dismissed in connection with the liquidation of an organization or in connection with a reduction in the number or staff, for the second and, in exceptional cases, for the third month of the employment period, are not considered severance pay! Accordingly, their payment terms are determined locally.

FAQ

Often, by the time of dismissal, it turns out that the employee has an unaccompanied 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 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 dismissed on February 11, 2011 does not need to pay compensation for vacation?

N.M.Somova, Tula

ANSWER: Right. Compensation is paid in proportion to the hours worked. At the same time, hours worked may include full and incomplete months. If the month is incomplete and the employee has worked less than half a 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 a full month (Article 423 of the Labor Code of the Russian Federation, clauses 28, 35 of the Rules on regular and additional vacations, approved by the NKT of the USSR on April 30, 1930 N 169) ... But note that this is not a calendar month, that is, the period from the 1st to the 30th (31st) (in February - to the 28th (29th)) day of the month inclusive. When determining the eligibility for compensation for unused vacation, the months worked must be taken into account. That is, from the moment you start working until that 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 leaves of his own free will on February 9, 2011, he needs to pay compensation for unused vacation, because he worked in organizations 17 calendar days, that is, more than half a month. In your case, the hours worked are 11 calendar days. This means that there is no need to pay compensation.

Warn the worker

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

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

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

O. A. Vasilyeva, Tomsk

ANSWER: The employee is really entitled to compensation, since he has worked in your organization for 16 calendar days, that is, more than half a month. The 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 vacations).

The procedure for calculating compensation for employees with a summarized accounting of working hours is exactly the same as for other employees (Article 139 of the Labor Code of the Russian Federation; clauses 1, 2, 4, 9, 10 of the Regulation on the specifics of the procedure for calculating the average wages, approved Resolution of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter - the Regulation)):

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

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

The 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, assigned to the employee in a 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 off the number of unused vacation days is not provided for by law, but it is not prohibited either. According to the Ministry of Health and Social Development of Russia, the organization has the right to make a decision on rounding (Letter of the Ministry of Health and Social Development of Russia dated 07.12.2005 N 4334-17). But in this case, you can only round 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 amount of salary.

Your employee did not have a salary in the billing period (February 2010 - January 2011) because he did not yet work in your organization. Therefore, to calculate compensation, you need to take the salary for the days worked by the employee before dismissal (Clauses 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 in the billing period. It is determined in the same way as for an incompletely worked month of the settlement period (Clause 10 of the Regulation):

Estimated number of calendar days = 29.4 days. : Number of calendar days in an incomplete month x Number of calendar days per 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. We calculate the compensation that you need to pay to the employee using the formula (1):

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

Forced absenteeism is included in the vacation period,but not counted for compensation

QUESTION: The employee was dismissed on the initiative of the employer on November 22, 2010. He went to court. By a court decision, he was reinstated at work with payment for forced absenteeism 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 absenteeism in the length of time for leave when calculating compensation for unused vacation? Is this period included in the billing period for calculating compensation?

E. V. Utkina, Smolensk

ANSWER: The time of forced absenteeism from November 23, 2010 to February 7, 2011, you need to include in the length of time for vacation (Article 121 of the Labor Code of the Russian Federation).

That is, when determining the number of days of unused vacation for which you need to pay compensation, take this period into account.

But when calculating compensation from the billing period, this time and the amount of payment for the time of forced absenteeism must be excluded. After all, the time of forced absenteeism is paid according to the 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 calculation period (Subparagraph "a" of clause 5 of the Regulations).

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

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

“The period of forced absenteeism 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 the average earnings are excluded from the calculation period for calculating the average earnings (Subparagraph "a" of clause 5 of the Regulations). Therefore, the period of forced absenteeism and the amount of payment for it do not participate 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 leaves at his own request. His last day of work falls on February 28, 2011. Do I need to include February 2011 in the billing period to pay him compensation for unused vacation?

E.A. Tandelova, Ufa

ANSWER: It is necessary. The settlement period for compensation is 12 full calendar months preceding the pay period for 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 complete 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 up to 2 months,considered according to a more advantageous option for them

QUESTION: We hired a minor with a salary of 5,000 rubles under a fixed-term employment contract (from February 1 to February 28, 2011). Employees under the age of 18 are entitled to leave of 31 calendar days. At the same time, employees who have concluded labor contract for a period of up to 2 months, vacation is laid at the rate of 2 working days per month of work. For how many days does our employee need to pay compensation for unused vacation: for 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 amount of compensation will be higher.

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

Determine the number of vacation days for which the employee is entitled leave compensation, 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 Regulation), according to the formula (2):

1 month x 31 days / 12 months = 2.58 days

Since the minor employee worked in full February 2011, he is included in the billing period "March 2010 - February 2011". And the estimated number of calendar days for the billing period is 29.4 days. (Clause 10 of the Regulation).

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

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

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

We calculate compensation on the basis of 2 working days per month of work (Article 291 of the Labor Code of the Russian Federation; clause 11 of the Regulation):

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

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

RUB 434.78 (5000 rubles / 23 days x 2 days).

Step 3. Compare the amounts received.

In your situation, you need to pay a minor employee compensation 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 larger at the rate of 2 working days per month. Therefore, in any case, you will have to calculate both compensation and choose the one that will be larger.

Part-timers 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 when the employment contract with him is terminated?

A.D. Voronova, Chelyabinsk

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

We always fire an employee on a working day

QUESTION: The employee filed a letter of resignation of his own free will on February 7, 2011. Do we understand correctly that he needs to 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, not right. The term of the notice of dismissal must be counted from the day following the day the employer receives the employee's application for dismissal (Article 80 of the Labor Code of the Russian Federation). Therefore, if an employee filed an application on February 7, 2011, the two-week warning period does not expire on Sunday February 20, 2011, but on Monday February 21, 2011.

Advise an employee

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

But if, nevertheless, 2 weeks after the employee warned of dismissal expired on the weekend, then you would need to dismiss the employee on the next working day following the last day of the warning 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 creditedinsurance premiums

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

M. I. Demina, Ryazan

ANSWER: It is necessary. You pay compensation for part of the leave for 2010 in 2011. And from January 1, 2011, for any compensation for leave (both upon dismissal and at the request of an employee without dismissal), you need to accrue insurance premiums, including contributions “for traumatism "(Subclause" i "clause 2, part 1 of article 9 of the Federal law of 24.07.2009 N 212-FZ" On insurance premiums ... "; clause 2 of clause 1 of article 20.2 of the Federal law of 24.07.1998 N 125 -FZ "On compulsory social insurance from industrial accidents and occupational diseases ").

An employee is entitled to a full vacation for a working year

QUESTION: Do we understand correctly that an employee who was hired on March 1, 2010 and dismissed 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, which gives the right to leave Art. 121 of the Labor Code of the Russian Federation. At the time of dismissal, the employee's experience in your organization was 11 months, including vacation. This means that he is entitled to a full leave of Art. 423 of the Labor Code of the Russian Federation, clause 28 of the Rules on regular and additional vacations.

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

Therefore, in your case, the employee at the time of dismissal did not work for 1 month on account of the vacation granted to him in advance. And you can (but do not have to) withhold from him the overpaid amount of vacation pay for 1 month not worked at the time of dismissal, that is, for 2.33 days of Art. 137 of the Labor Code of the Russian Federation.

Compensation for unused vacationcan be paid to an employee upon termination of an employment contract, as well as in a number of other cases. When it is possible to get money instead of a vacation and in what amount, we will tell you in this article.

Annual paid vacation

The state guarantees each worker a vacation period, during which the worker retains his job and position. Moreover, these days of rest are paid by the employer based on the employee's average salary over the past year.

The employee has the right to go on vacation after 6 months of continuous work in the organization, and after 11 months the employer is obliged to provide his employee with paid rest. In the following years, the sequence of going to rest in the team is determined in accordance with the vacation schedule, which the organization must approve no later than 2 weeks before the onset of the new year.

Standard vacation guaranteed labor legislation, is 28 days. In addition, some employees are entitled to an extended vacation period, for example, teachers are legally entitled to rest 45 or even 56 days. On top of this, for special working conditions, some employees are entitled to additional vacations.

The leave can be provided in full (4 weeks at once) or divided into parts, while at least one of the parts must be at least 2 weeks.

How is an unaccompanied vacation formed (transfer, extension of vacation, recall from vacation)

Sometimes life circumstances do not allow the employee to fully use the days of the planned rest. In this case, the vacation can be extended or rescheduled for another time. The vacation is extended or postponed:

1. If the employee falls ill during the rest. The disease must be documented ( sick leave), which means that you cannot do without going to a doctor in this case.
2. If during the vacation, the employee performed any state duties, for the period of which the legislation provides for the employer's obligation to release the employee from work.
3. In other cases provided by law.

In these situations, the term for extending or postponing the vacation is determined by the head of the organization, but taking into account the opinion of the employee.

If the employee was untimely transferred vacation pay or a vacation warning was received later the deadline, he has the right to demand the transfer of the rest to another time. The management is obliged to satisfy such a statement of the employee.

In the rare event that an employee’s absence from work could adversely affect the performance of the organization, the law allows annual leave next year. However, the employee's consent must be obtained for such a transfer, and vacation days must be used no later than the next year.

In the event of any production need, management can recall an employee from vacation, but only with his consent. The unused portion of the leave must be granted to the employee later in the current year or added to the next leave.

Failure to grant leave for 2 years in a row is prohibited by the Labor Code, however, life practice shows that the unaccompanied part of the leave is sometimes forgotten, and legal days of rest "hang".

Will unaccompanied vacations burn out in 2016-2017? What the Labor Code says

For several years, there have been regular rumors that compensation for unused vacation will not be provided soon, but unused days will burn. Is it so?

In fact, nothing like that. At one time, there was a period when it was allowed to replace real rest with compensation for unused vacation for any time, but after Russia joined the ILO convention, it is impossible not to rest for more than 2 years. Even when the convention was put into effect, some journalists misunderstood its content, and unverified information still begins to circulate from time to time. But neither in 2017, nor in subsequent years, the law does not provide for the combustion of vacation days.

Monetary compensation for unaccompanied leave upon dismissal

Speaking about compensation for unused vacation, we imagine, first of all, monetary compensation for inconveniences and hardships caused. Let's turn to the legislation.

The Labor Code allows the exchange of a vacation period for monetary compensation for unused vacation (Articles 126 and 127 of the Labor Code of the Russian Federation), but with some restrictions.

First of all, they talk about compensation for unused vacation when an employee is fired. In accordance with labor legislation, upon termination of an employment contract, the employee is paid compensation for all unused vacation days.

If the employee wishes, then, at his request, instead of money, he will be given all the unaccompanied vacation days with subsequent dismissal. In this case, the last day of vacation will be considered the day of dismissal. This option is possible only if the termination of the employment contract is not due to the culpable actions of the employee.

Since both the calculation of vacation pay when granting vacation and the calculation of compensation for unused vacation are the same, then in material terms, the resigning person does not gain anything. Rather, here we are talking about the possibility of legally absent from the workplace, but so that the record of dismissal in labor appears a little later in time than when dismissal with compensation for unused vacation.

With regard to compensation for unused leave without dismissal, the law establishes some restrictions on the monetary compensation of days of unrealized rest.

Compensation for unused leave without dismissal

Compensation for unused leave without dismissal is covered in article 126 of the Labor Code. It says that annual paid leave can be replaced by monetary compensation, but only in the part that exceeds 28 days and upon a written application from the employee. If we are talking about the addition of several annual leave or about the transfer of leave, then a part of each annual leave over 28 days or any number of days from this part is subject to compensation.

From the above, the following important conclusions can be drawn.

1. Only rest days that go beyond the standard 28-day vacation are compensated. This means that if an employee has the right to only 28 days of vacation, then there is nothing to compensate in excess of these days, which means that the employee must take a walk on unaccompanied days, and compensation for unused vacation is possible only upon dismissal.
2. If the unused vacation days are summed up, but each vacation is also equal to 28 days or the unused part of the 28-day vacation, then monetary compensation for the unused vacation is also impossible.
3. If the employee's annual leave exceeds 28 days, then the surplus can be replaced with monetary compensation, both in whole and in part. For example, 45 days pedagogical leave makes it possible to claim compensation both for 17 days (the difference between pedagogical and standard leave), and for any other number of days less than 17.
4. Compensation for unused vacation over 28 days is provided only at the request of the employee.

Labor law prohibits, in any case, except for dismissal payments, to replace rest days with compensation for unused vacation for the following employees:

• pregnant women;
• minors;
• working in unfavorable conditions labor.

How compensation for unused leave without dismissal is calculated

How unused vacation compensation is calculated - very important aspect in the issue under consideration, since it affects the material side of the relationship between the employee and the employer.

To determine the amount of compensation for unused vacation [P1] both in relation to rest days in excess of the standard vacation and upon dismissal, it is necessary to calculate the size of the employee's average salary for 1 day. The basis is the income of the employee, which was received by him in the past 12 months before the payment of compensation. Legislatively, the calculation rules are reflected in the regulation "On the specifics of the procedure for calculating the average wage", approved by Government Decree No. 922 of 12.24.2007.

To determine the average daily income of an employee, you need to divide the income for the year by 12, and the resulting figure, in turn, should be divided by 29.3. Thus, the average daily earnings of an employee = D / 12 / 29.3. In this formula, D is the employee's annual earnings, 12 is the number of months in the year, and 29.3 is the statutory value that represents the average number of days in each month of the year.

In the event that in the billing year any of the months the employee did not fully work, for example, due to illness, the regulation provides a clarifying formula for calculating the average earnings for one day. It is equal to:

D / (29.3 × Mp + Mn), where:

D - income for the past year;

29.3 is the average number of days in each month of the year;

Мп - the number of full months in the past year that the employee worked;

Мн - the number of days in incomplete months that the employee has worked.

For example, a worker worked 10 full months of the design year, and in 2 months he was sick for 2 weeks (that is, he worked 30 calendar days in both months). The average daily earnings in this case will be equal to:

220,000 (annual income) / (29.3 × 10 + 30) = 681.11 rubles.

After determining the average daily earnings, it remains only to multiply the amount received by the number of days of unclaimed vacation, and the result will be the amount of compensation for unused vacation payable to the employee. For example:

681.11 × 3 = 2,043.33 rubles.

How to use a sample and write an application for compensation for unused vacation

Since the calculation and payment of compensation for unused vacation is made only on the personal application of the employee, you need to know how to write such a statement.

The legislation does not provide for a unified application form for compensation for unused vacation. The document is written by the employee in free form addressed to the head of the organization.

A typical vacation compensation claim contains following rules: in the upper right corner, the name of the organization, surname, name, patronymic of the manager to whom the employee is referring is indicated. Slightly below the employee must indicate his data: full name, position, department, personnel number. Even lower in the middle, the name of the document is indicated: application. Next, from the red line, the employee describes his request for compensation for unused vacation.

In the text, you need to indicate:

• the year of work (period) for which the vacation was granted;
• type of vacation (main or additional);
• the number of days for which the employee wants to receive compensation for unused vacation.

The application must be submitted to the office, to the secretary of the head or directly to the head, with a mandatory mark of acceptance.

By general rule compensation for unused vacation days, that is, a cash payment instead of rest, is due to an employee only upon dismissal (Article 126 of the Labor Code of the Russian Federation). Only in some cases is it possible to compensate the vacation with money for those who continue to work. And not completely, but partially.

Vacation compensation, how much money can be compensated

Every employee has the right to annual leave of 28 calendar days with the retention of his position and average earnings. According to the employee may ask on the replacement of a part of such leave exceeding 28 calendar days, for monetary compensation upon written application. The application must be signed by the employee, and all employer's visas must be affixed.

If earlier the employee could take monetary compensation for vacation for all previous years, when he did not use this right and part of the vacation exceeding 28 days of the current year. With changes to labor Code, Article 126, this norm has become stricter.

Note: If the employee has not been on vacation for more than two years, the employer may be fined.

How much of the vacation can be compensated for with money

An employed employee will be able to receive monetary compensation in return for annual leave only when he is entitled to additional or extended leave... You can compensate with money only for a part of the rest time, which exceeds 28 calendar days a year. That is, you cannot take advantage of compensation within the limits of a regular vacation!

At the same time, the law does not establish any limitation on the number of days that can be compensated. Money can be replaced by additional days of rest assigned to an employee at any time, for example, for work on weekends and holidays.

So, compensation can only be paid for additional vacation days for any year... Thus, the employee can be paid compensation for unused vacation only upon his dismissal.

If, nevertheless, the employer replaces vacation with compensation, he thereby violates the law, therefore, he cannot include these expenses in the taxable base for income tax.

Upon dismissal, an employee may be replaced by monetary compensation by granting leave with subsequent dismissal. If a fixed-term employment contract was concluded with an employee, then the last day of work will be the day of leaving the vacation, and not the date on which the contract was concluded.

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When it is impossible to replace vacation with compensation

It is prohibited to pay compensation instead of the main leave before dismissal. It is impossible to replace the days of additional or extended leave with compensation for employees of the following categories (paragraph 3 of Article 126 of the TKRF):

• pregnant women;
• minors. That is, employees who have not reached the age of 18;
• those who are engaged in hard work and work with harmful working conditions. It is permissible to substitute compensation for additional leave for harmful or dangerous working conditions only in the part exceeding seven calendar days. At the same time, the procedure, size and conditions for such a replacement are established in sectoral or intersectoral agreements or in a collective agreement (Article 117 of the Labor Code of the Russian Federation).

Separate restrictions are provided for employees:

• customs authorities (clause 2 of article 35 of the Law of July 21, 1997 No. 114-FZ);
• internal affairs bodies (part 3 of article 45 of the Regulation approved by the resolution of the Supreme Council of the Russian Federation of December 23, 1992 No. 4202-1);
• other government agencies, if it is directly established internal orders or legislation.

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Application for replacing vacation with compensation, order of the head

The employer is not entitled to pay compensation instead of vacation at his own request. He can do this only after he receives a statement from the employee (part 1 of article 126 of the Labor Code of the Russian Federation).

Director of LLC "Gasprom"
A.V. Ivanov

from the cashier
A.V. Petrova

STATEMENT

I would like to ask you to replace part of my vacation (three calendar days) in excess of 28 calendar days with monetary compensation.

Pay compensation for unused vacation, not related to the dismissal of an employee or not, the head of the organization decides. But he does not have such a duty (letter of the Ministry of Labor of Russia dated April 25, 2002 No. 966-10).

Note: Order to replace part of the vacation with monetary compensation

LLC "Gasprom"

TIN 4308123456, KPP 430801001, OKPO 91256423

full name of the organization, identification codes (TIN, KPP, OKPO)

ORDER No. 4

on replacing part of the vacation with monetary compensation

Kirov 15.05.2019

Based on the statement of A.The. Petrova from 05/15/2019 I ORDER:

1. Replace the cashier A.V. Petrova additional paid leave for work experience in the organization lasting three calendar days in cash compensation.

2. The personnel department shall ensure the introduction of the amendments specified in paragraph 1 of this order to personnel documents A.V. Petrova by May 29, 2019.

3. Accounting departments, when calculating vacation pay, take into account the replacement of the cashier A.V. Petrova three days of additional vacation in monetary compensation.

I reserve control over the execution of this order.

Director Ivanov A.V. Ivanov

Acquainted with the order:

Chief Accountant Sidorova A.S. Sidorova
15.05.2019

HR manager Gromova E.E. Gromova
15.05.2019

Cashier Petrova A.V. Petrova
15.05.2019

In case of dismissal of an employee, he is paid monetary compensation for all unused vacations, and if the working year has not been fully worked out, then the compensation is calculated in proportion to the months worked.

Compensation for unused leave upon dismissal is paid to all employees, regardless of the reason for dismissal... This also applies to temporary workers hired for a period of up to 2 months, and workers with whom a fixed-term employment contract has been concluded, and workers who have been probation, and they did not pass it, and part-time workers. All compensation is calculated based on average earnings.

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Payment of compensation for unused vacation

The Labor Code of the Russian Federation provides for the mandatory provision of annual paid leave in the amount of 28 calendar days, unless otherwise provided federal laws... In addition, in the process of labor relations, some categories of employees have the right to various additional or extended vacations (for irregular working hours, for length of service, for harmful working conditions). But it happens that the vacation can not always be used or can only be used partially.

In this case, the legislation provides the possibility of replacing a part of the annual paid leave with monetary compensation.

Replace with monetary compensation only that part of the annual leave that exceeds 28 calendar days.

If the employee has not taken leave for two years, then only a part of each annual leave that exceeds 28 calendar days can be replaced with compensation. For example, not having completed the annual leave in full in the past year, an employee who is not eligible for additional leaves for the next year asks for leave in the amount of 28 calendar days, and for the remaining unfulfilled several days of leave for last year asks to replace with money. Such a replacement is not possible., since the employee's vacation does not have a part exceeding 28 days, and have to take a vacation.

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Unused leave compensation upon dismissal, calculation on a calculator

If an employee has worked in the organization for at least 11 months, then he is entitled to compensation for all 28 calendar days.

In other cases, compensation is paid in proportion to the hours worked. For each full month of work, there are 2.33 calendar days of vacation (28 days: 12 months).

If the vacation is of a different duration, then the number of days of full vacation is divided by 12 months. The resulting number of days is rounded to the nearest whole value in favor of the employee.

When calculating compensation, payments are taken into account, provided for by the remuneration system established at the enterprise.... As a rule, these are the employee's basic salary, various allowances and surcharges, bonuses provided for by the salary system, etc. But some payments are not taken into account when calculating compensation: the amount of sick leave and benefits for pregnancy and childbirth, as well as the average earnings paid in cases provided for by law (study leave, business trips, payment for downtime, etc.). Not only these amounts are excluded from the calculation, the accounting period is reduced by the days for which they were charged, as well as those days for which the employee was not paid anything (vacation at his own expense).