Rules for granting leave to a minor employee

Annual paid vacation

The duration and rules for granting leaves to employees are regulated by Ch.
19 Labor Code of the Russian Federation. With regard to leave for minors, the specified standards are also applicable, but taking into account the peculiarities of labor regulation for this category of employees. In particular, legislation individually regulates the duration of annual paid leave for minor workers.

So, in accordance with Art. 267 of the Labor Code of the Russian Federation, the annual paid leave for workers under the age of 18 is 31 calendar days.

Let us remind you that, as a general rule, the duration of vacation is 28 calendar days.

The labor inspector of the Nizhny Novgorod region answered the question about the duration of leave for a disabled minor employee. V. I. Neklyudov. Get trial access to the system and proceed to the official's explanations for free.

What documents are needed to formalize an employment contract with a minor?

The set of necessary documents for drawing up an employment contract greatly depends on the age of the minor worker and certain circumstances - for example, whether he is getting a job for the first time or not. In addition, if the employee is under 14 years old, then the employment contract is signed for him by a parent or guardian.

In its most complete form, this kit will look like this:

• passport (if the teenager has already received one);
• birth certificate (if the minor is under 14 years old);
• consent of one of the parents (guardian) to conclude an employment contract - provided that the minor has not reached the age of 14 years;
• consent of the guardianship and trusteeship authority - for a child under 14 years of age.
• work book (if any). If an employee is hired for the first time, the employer issues a work book.
• SNILS (if available);
• military registration document (if a minor is subject to conscription for military service);
• document on education, a document confirming qualifications (if the work he will perform implies the presence of certain competencies): a certificate of basic general or secondary general education, a diploma of secondary vocational education or even a certificate of training;
• medical certificate of health - issued after a mandatory medical examination, which is required by Art. 266 Labor Code of the Russian Federation. Keep in mind that as part of the health protection of minors, the employer is required to send and pay for them to undergo mandatory pre-employment medical examinations, as well as periodic annual medical examinations until they reach the age of 18 years.

The contract with a minor must specify all the features of the labor relationship: the length of the working week, the duration of annual paid leave and other details. You can use this employment contract with a minor employee as a template - downloadable sample.

Basic rules for granting leave

In addition to the fact that the duration of vacation for a minor worker is 3 calendar days longer compared to adult workers, there are other features. In particular:

• Vacation is granted at a time when it is convenient for the employee himself (Article 267 of the Labor Code of the Russian Federation). This means that an application for leave can be written before receiving six months of work experience at the enterprise.
• The vacation must be used in the current year, since it is impossible not to provide it, even due to production necessity (Part 4 of Article 124 of the Labor Code of the Russian Federation).
• A minor employee cannot be recalled from vacation (Part 3 of Article 125 of the Labor Code of the Russian Federation).
• It is prohibited to replace vacation with a cash payment, even for a period of more than 28 calendar days (Part 3 of Article 126 of the Labor Code of the Russian Federation). The exception is compensation upon dismissal.

A general exception applies to minors, stating that when a punishment is imposed in the form of correctional labor, the vacation is 18 working days (Part 6 of Article 40 of the Penal Code of the Russian Federation).

What to do if rights are violated?

As you can see, the rights of an employee who is under 18 years of age are protected by law. But what if the employer violates them? For example, will he not provide vacation upon request, will he try to call him back from vacation, will he transfer an underestimated amount of vacation pay? What should a young employee do in this case?

If a violation occurs, the action algorithm will be as follows:

1. Submit a statement to the management of the enterprise demanding that the violations be eliminated. The statement can be drawn up in any form, but must contain an indication of what the violation consists of. The document can be submitted through the reception desk (then it is submitted in two copies - the employee’s copy is marked with an acceptance mark), or by registered mail via mail.
2. If the violation is not eliminated within a reasonable time (what period is considered reasonable is up to the employee to decide), the employee has the right to contact the supervisory authorities - Rostrudinspektsiya, the prosecutor's office, etc. These services will already conduct an inspection at the enterprise.
3. Finally, if we are talking about underestimated amounts, then it is wiser to immediately file a claim in court and demand the missing payments.

Employer's liability

If the management of the enterprise is found guilty of violating the rights of a minor, he faces administrative liability in accordance with Art.
5.27 Code of Administrative Offenses of the Russian Federation. According to the provisions of the article, a fine is possible:

If we are talking about a specific non-payment of vacation pay, then the amount of punishment will be as follows:

• for officials and individual entrepreneurs – from 10 to 20 thousand;
• for an organization – from 50 to 70 thousand rubles.

IMPORTANT! If the perpetrators have already been brought to justice, the severity of the punishment increases.

Duration of paid vacation after reaching adulthood

In practice, situations may arise when a citizen entered into an employment contract with an organization or entrepreneur before reaching the age of majority, and went on vacation while already an adult. How many days is the vacation granted to minors who have reached 18 years of age at the time of going on vacation?

The answer to this question was given by the Plenum of the Supreme Court in the resolution “On the application of legislation regulating labor...” dated January 28, 2014 No. 1. According to paragraph 21 of this document, leave is granted in proportion to the time worked before and after the age of 18 years at the rate of 31 and 28 calendar days respectively.

Calculation

When a minor goes on paid leave, he has the right to receive vacation pay - the minimum payment for a working day.

To calculate earnings for 28 calendar days, you must use the formula: payments for the year/12/30. Using this formula we will get the amount of minimum earnings per day.

Example:

A 16-year-old employee who worked at the company for a year and received 5,000 rubles a month wants to know the amount of his vacation pay.

To do this, you need to divide his monthly salary by 30 days to get the average income per day: 5000/30 = 166.7 rubles.

Next, to calculate vacation pay for paid vacation, we multiply the average income per day by how many days of vacation: 166.7*28=4668.

Using this formula, everyone can calculate the amount of vacation pay for 28 days of rest.

How is study leave 2015 paid? Read our article. Is maternity leave included in the length of service? You will find the answer here.

How to write an application to the kindergarten for a child’s leave? Sample here.

Additional rest for minors

In addition to the main leave, an employee who has not reached the age of majority may also apply for additional leave. Such rest is due to the category of employees in question in the following cases:

• with a special nature of work (Article 118 of the Labor Code of the Russian Federation);
• when working in the regions of the Far North and equivalent areas (Article 14 of the Law “On state guarantees and compensation for persons working and living in the Far North and equivalent areas” dated 02/19/1993 No. 4520-1);
• if the collective agreement between the employer and employees provides for a longer duration of leave for minors (Article 41 of the Labor Code of the Russian Federation).

For young people, the most relevant guarantee is the provision of additional leave to complete part-time and part-time studies. In this case, minors are granted leave for the duration established by Art. 173−176 Labor Code of the Russian Federation. It is paid, i.e. the employee retains his average salary.

Who is entitled to additional leave and for what duration?

This issue is regulated by Chapter 19 of the Labor Code of the Russian Federation, which provides a list of grounds for receiving additional vacation time. This list is incomplete; holidays beyond the established duration are also introduced by other standards. The law connects the establishment of such leave with the place of work (for example, the Far North) or its nature (performing certain duties), schedule, etc. In accordance with Art. 116 of the Labor Code of the Russian Federation, annual additional paid leave is provided to certain categories of employees.

Irregular working hours

Based on Art. 119 of the Labor Code of the Russian Federation, additional leave for those working on an irregular working day is granted if, according to the terms of the employment agreement, a working day with an unfixed duration is established. In this way, the employer compensates for overtime. It is paid in the same manner as the main one; it is replaced by monetary compensation at the request of the employee. It is calculated based on average earnings. It should be remembered that the employment agreement must include a condition on establishing an irregular working day for the employee. And if during the year the employee was not involved in work beyond the fixed length of the day, leave is still granted. And in total, not one additional day of vacation is guaranteed per year, but at least three calendar days of such vacation.

Sample application for irregular working hours

Special nature of the work

For the special nature of the work (Article 118 of the Labor Code of the Russian Federation), additional rest is guaranteed to employees whose work characteristics are listed in the relevant decrees of the Government of the Russian Federation. They also regulate its duration: for example, doctors and nurses if they have worked continuously for more than three years (Resolution No. 1588).

Harmful, dangerous working conditions

Art. is dedicated to this case. 117 of the Labor Code of the Russian Federation, which says that if working conditions are classified as 2, 3 or 4 degrees of harm, additional paid leave can be provided with a duration of at least 7 additional days of rest. The specific number of days for each employee is specified in the collective agreement. Also, the employer’s obligation to provide such rest is fixed in employment contracts. The employer transfers money instead of days only for days exceeding the minimum rest period, if this is specified in the industry agreement and collective agreement.

IMPORTANT!

It should be remembered that the full number of days of rest is due to those who have worked in harmful conditions for 11 months or more. Otherwise, the duration is calculated in proportion to the time worked under such conditions.

At the same time, the length of service for additional rest does not include:

• periods of sick leave;
• time on maternity leave;
• the period during which a pregnant woman, or breastfeeding, or having a child under one year old was transferred to light work;
• the period during which the employee performed state or public duties.

Based on clause 12 of Resolution No. 273/P-20, only days on which the employee worked in hazardous conditions for at least half a day are counted towards the time for determining length of service. This means that if an employee worked in hazardous conditions for less than 50% of his working time, such a day will not be counted toward his length of service for additional leave. If 51% or more, such a day will be counted in the length of service as fully worked in harmful conditions. But the Supreme Court recognized such a norm as invalid and in its decision dated January 26, 2017 No. AKPI16-1035 (also see the decision of the Supreme Court of the Russian Federation dated April 15, 2004 No. GKPI2004-481) established that the only correct method when calculating such length of service is to be guided by the norm of Art. 121 of the Labor Code of the Russian Federation: take into account the actual time worked. Thus, today the length of service is calculated:

• in days, if the employee worked in such conditions all day;
• in hours if he worked part-time. The number of hours worked in hazardous conditions is then recalculated into days, based on the length of the working day established for the employee.

The employer is obliged to ensure recording of the working time worked by the employee, including time worked in harmful or dangerous working conditions.

For disabled people

Those entitled to additional paid leave include people with disabilities.

Providing disabled people with rest beyond the usual duration (at least 30 calendar days) with payment is provided for in Art. 23 Federal Law-181 dated November 24, 1995. All disabled workers have this right, regardless of the assigned disability group.

In accordance with the Labor Code of the Russian Federation, disabled people of group 3, for whom an irregular day is established, are provided with at least 3 calendar days. The employer, in the collective agreement, has the right to develop his own rules of work and rest, including for disabled workers.

Disabled workers also have the right to additional leave without pay for up to 60 calendar days a year (Article 128 of the Labor Code of the Russian Federation).

For health workers

Those who are entitled to additional leave include some categories of medical workers. They are entitled to additional days of rest for performing work of a special nature (for example, general practitioners who have been in office for at least 3 years, according to Decree of the Government of the Russian Federation No. 1588 of December 30, 1998), and for some - for working in hazardous conditions. The list of such positions and the conditions for provision are indicated in the by-laws and decrees of the government of the Russian Federation.

Northerners

Such employees are entitled to additional leave, the duration of which, in accordance with Art. 321 of the Labor Code of the Russian Federation, is 24 calendar days. 16 calendar days - the duration of additional leave granted to citizens working in areas equated to the regions of the Far North.

Workers injured at work

Who else has the right to take extra rest? Citizens whose health was harmed as a result of an accident at work or an occupational disease are granted additional paid leave for the entire period of treatment (Article 17 of the Federal Law No. 125 of July 24, 1998). It is relied upon if sanatorium-resort treatment is necessary according to the opinion of doctors. In addition, its duration includes travel time to the place of treatment and back.

Chernobyl survivors

Chernobyl leave is provided to certain categories of citizens who participated in the liquidation of the accident or were in the affected area; its duration depends on the degree of damage to health and is determined by Law No. 1244-1 dated May 15, 1991. It is provided upon the employee’s application, to which documents confirming the status must be attached.

Read more about this in the article “Chernobyl vacation”.

Can an employee under 18 years of age take leave at his own expense?

The employee’s right to temporarily leave the workplace without losing his job is provided for in Art. 128 Labor Code of the Russian Federation. Based on this rule, with the consent of the employer, an employee can take days of unpaid leave.

This article also applies to minor employees. However, they are not on the list of exceptions to which the employer is obliged to provide unpaid vacation days. Consequently, the opportunity to go on such a vacation depends not only on the desire of a person under 18 years of age, but also on the will of the employer.

How many days of vacation a minor has in this case is determined by the parties independently. The will of the parties is recorded in the employee’s statement and the employer’s order. The reasons why an employee may request such leave are vague in the legislation. These include, for example, family circumstances and other valid reasons.

Find out also “What benefits are provided for minor workers.”

Payment

The legislation does not provide special formulas for calculating the amount of vacation pay for working teenagers.

The amount of payment is calculated using a similar calculation mechanism for adult employees, the difference is only in the number of days of rest.

In this case, the calculation period is not 12 months, as in the general case, but the exact number of months that were worked in the company.

Is compensation possible upon dismissal?

The ban on compensation for minor workers for unused vacation days is expressly established by Part 3 of Art. 126 TK. However, this rule applies to an employee when he is in an employment relationship with an organization or entrepreneur. When they are terminated, different rules apply.

Part 1 art. 127 of the Labor Code obliges the employer to pay compensation to the resigning employee for all unused vacation days. This rule also applies to workers under 18 years of age, since otherwise their rights would be unreasonably infringed.

Compensation for leave of minor workers should be calculated using the following formula:

K = Kn × Sz,

Where:

• K - amount of compensation;
• Кн - number of unused vacation days;
• Sz is the employee’s average salary per day.

If your minor employee is going on vacation and you doubt the accuracy of your calculations, use tips from ConsultantPlus experts. Get trial access and proceed to the HR Guide.

How is it paid?

According to Art. 136 of the Labor Code of the Russian Federation, money to an employee going on vacation must be paid no more than 3 days before the start date of the vacation. In this case, payment is calculated based on average earnings for the time worked.

Calculation of the average according to Art. 114 of the Labor Code of the Russian Federation must be maintained for 1 calendar year. However, since minors have the right to go on vacation without waiting not only for a year, but also for six months of work experience, the period from the beginning of their working activity until the moment they go on vacation can be calculated for them.

To calculate average earnings, all payments that the employee received for performing his job duties are used.

These include salaries, regular bonuses, etc. However, social payments are not taken into account, even if carried out at the expense of the employer (material assistance, compensation for travel, payment for food, etc.) - that is, payments not related to direct performance of labor functions.

In addition, some time periods may not be taken into account when calculating the average . For minors, these will include:

1. time of incapacity due to illness or injury (“sick leave”);
2. the time when there was a strike at the enterprise in which the employee did not participate;
3. downtime without the employee’s fault.

What is common to all situations is that the employee was released from work - with or without continued pay.

As a result, the employee is paid average earnings per day multiplied by the number of vacation days. And the average salary per day is calculated using the formula:

SZD = D / 12 / 29.3 where:

• SZD – average salary per day;
• D – total amount of income;
• 12 – number of calendar months in the billing period;
• 29.3 – average number of days per month.

In the event that a minor has not yet worked for a year, instead of 12, the number of months that he actually worked will be used.

Results

Let's summarize:

• the basic annual leave of employees under 18 years of age should be 31 days;
• minor employees also have the right to additional rest, provided, among other things, for the purpose of training;
• it is allowed to take a vacation at your own expense, but only in agreement with the employer;
• The law prohibits such employees from taking compensation for unused vacation, but upon dismissal it must be paid.

Sources:

• Labor Code of the Russian Federation
• Law “On state guarantees and compensation for persons working and living in the Far North and equivalent areas” dated February 19, 1993 No. 4520-1

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Nuances of employing minors

Persons under 18 years of age, according to Article 21 of the Civil Code, are recognized as a category of citizens whose legal capacity has certain restrictions.
According to general norms, it is believed that minors cannot fully create and fulfill responsibilities, acquire and exercise civil rights. In other words, up to the age of 18, his legal representatives in the person of parents or guardians are responsible for the actions of a person. The minor himself does not have the opportunity to single-handedly make certain vital decisions. Despite existing restrictions, citizens under 18 years of age have the right to work. The procedure for regulating such activities is enshrined in Chapter 42 of the Labor Code of the Russian Federation. It outlines the provisions on prohibitions imposed on the work of minors, as well as fixed guarantees, payment regulations and other points.

Article 94 of the Labor Code of the Russian Federation separately establishes standards for the length of the working day depending on age.

The duration of daily work (shift) cannot exceed:

If the activity is carried out while studying, then the period will be 2.5 hours a day for minors 14-16 years old. For employees over the specified age, but under 18 years of age, the maximum is 4 hours.

Employment of this category of workers is carried out in accordance with standard regulations. An employment contract must be prepared. However, if the teenager is under 15 years old, then the consent of the parent and guardianship authorities will be required during registration (Article 63 of the Labor Code of the Russian Federation).

Expert commentary

Kireev Maxim

Lawyer

The above norms are considered basic, and their violation entails liability under the Code of Administrative Offenses of the Russian Federation. And these are considerable amounts of fines.

Such severity is due to the fact that the state, first of all, stands for the protection of the rights of minors. It is their interests that are taken into account first. Since any work has certain risks, they must be minimized so as not to cause damage to health and the educational process. This is precisely where such serious requirements for the employment of teenagers help.