28 days annual leave cannot be replaced with money
Each employee with an employment contract is entitled to 28 calendar days of vacation per year. Vacation pay is retained. On a part-time basis, the number of days is not reduced. Non-working holidays are not counted towards vacation - Art. 115, 120 Labor Code of the Russian Federation.
These 28 days cannot be replaced by monetary compensation. Even when everyone doesn't mind. The employee must take a vacation. The exception is when he did not have time to rest and quit or the company was in a rush situation - this will be discussed below.
Vacations can be divided into parts. But one of the parts must be at least 14 days. The remaining days can be scattered throughout the year. Splitting up vacation is a crutch for the employer if there is no one to replace the employee for a whole month - Art. 125 Labor Code of the Russian Federation.
The working year for calculating vacation begins from the date the employee was hired, and not from the first of January. For example, the studio entered into an employment contract with a seamstress on May 20, 2021. This means that the seamstress must take 28 days off until May 20, 2022. This follows from paragraph 1 of the Rules of the People's Commissariat of the USSR dated April 30, 1930, No. 169.
The first time an employee rests is six months after being hired. Unless the employer doesn't mind letting you go early. Early leave must be given to pregnant women before maternity leave, minors and adoptive parents of children under three months old.
Then the employee goes on vacation as scheduled. But parents of disabled children, families with many children, minors and veterans choose their place in the schedule themselves. And a pregnant woman has the right to take a vacation completely unscheduled - before going on maternity leave or immediately after - Art. 122, 123, 260, 262.1, 262.2, 267 Labor Code of the Russian Federation.
Article: how to send an employee on vacation
The employer approves the vacation schedule two weeks before the start of the year. That is, until December 17th. The employee is notified of his leave two weeks in advance.
The employee is required to go on vacation as scheduled. He cannot choose “double vacation pay” instead of rest. Just by choice, be at work and not rest either. In one case, an employee tried to prove that he was not required to rest. At this time there was downtime at the enterprise. The court said that going on vacation is mandatory. Downtime does not cancel the schedule. The employer has the right not to allow the employee into his territory during vacation - case No. 33-1123/2018.
Staffing is a separate interest of inspectors
Inspectors also always study the company's staffing table.
The goal is to see different salaries for the same positions. This is not allowed by law. You cannot indicate salary ranges. The risks are very serious: in addition to sanctions for violations, those who had a lower salary will also have to pay extra. In other words, one position must have one income.
This problem, which is relevant for pharmaceutical, trading and other companies with medical representatives, sales managers, and territorial representatives, has a solution. You can create unique positions and job descriptions. In one of the projects, we created more than 900 unique job descriptions in 1.5 months.
If there is an emergency, the vacation can be postponed until next year
If everything collapses without an employee, the vacation can be postponed to next year. All 28 days or partly - Art. 124 Labor Code of the Russian Federation.
You must understand that the reason for the transfer must be very serious. For example, the clothing industry won a government contract to supply bed linen for hospitals. If the seamstresses go on vacation, the supplier will break the contract. Therefore, the vacation is postponed.
To postpone the vacation, the employee’s written consent is required, without this there is no way.
The employee is not paid compensation for postponing vacation. This is not a replacement for vacation with money. It’s just that next year the employee will take more than 28 days off and will receive more vacation pay.
The canceled vacation must be given to the employee next year. It cannot be postponed for another year. A year without vacation is possible, two is no longer possible. Let's imagine that our seamstress agrees not to rest during her working year from May 20, 2021 to May 20, 2022. Then she uses her 28 days from May 20, 2022 to May 20, 2023.
It is impossible to cancel leave for professional needs for minors and employees with hazardous working conditions based on the results of a special assessment.
The employee may not be satisfied with the cancellation of the vacation; he will complain to the labor inspectorate and the court. The employer must be prepared to prove the urgent need for the transfer. And keep the employee’s written consent ready. Otherwise, the inspectorate will fine you. The employer will be forced to give vacation according to the schedule. And the employee will seek compensation for moral damages.
In one case, the management of a nursing home postponed the head nurse's vacation until next year. The reason is that there is no one to work. The nurse did not agree to this. The nurse’s signature indicating that she was familiar with the shift schedule for the coming months was not considered consent. The boarding school was ordered to send the nurse on leave and was awarded compensation for moral damages of 2,000 rubles - case No. 33-14615/2017.
New Rostrud lists
Lists of employers who should expect inspections more often have appeared on the Rostrud website.
Companies that are on the high-risk list will be subject to a scheduled inspection every 2 years. According to the list with significant risk - once every 3 years.
There are two categories of risk: high and significant. Search for yourself by region, an Excel file will open, where companies are listed by TIN and name.
If a company is not on both lists, this does not mean that they will not come to check it at all.
The company falls into the medium risk category. And it is better to check information about upcoming audits with your branch of the Federal Service for Labor and Employment. The risk-based approach to inspections has been used by Rostrud since March 1, 2021.
Now let's talk in detail about how inspections by State Labor Inspectorates are currently carried out in practice.
Fine if the employee did not go on vacation
The Labor Inspectorate fines employers under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, if the employee’s vacation was replaced with “double vacation pay” or, by order, it was postponed to the next year.
The fines are:
— For individual entrepreneurs — from 1000 to 5000 ₽;
— For LLC — from 30,000 to 50,000 ₽;
— For LLC directors — additionally from 1000 to 5000 ₽.
Excuses to the inspector that the employee is a workaholic and himself asked to replace the vacation with money will not fly. An example is in case No. 21-477/2017.
Here's a question. If the employee does not go on vacation, is it possible to issue a vacation order and issue vacation pay, but in fact he will go to work? It will turn out that the vacation will be replaced with money, but according to the papers it will be clear. After all, a policeman is not assigned to every employer. Whether there will be problems depends on the employee. If he changes his mind and complains to the inspectorate about fictitious leave, the employer will be punished.
Salary documents
Documents related to wages will also be of extreme interest to inspectors.
Among other things, the State Tax Inspectorate will look at payroll and pay slips, ask for certificates of various payments, and may also ask for a certificate of salary arrears. An important point is salary indexation. Firstly, it must be in accordance with the law, secondly, it should not be confused with a salary increase, and thirdly, it is better to carry out the first two procedures several days apart.
Otherwise, inspectors may suspect you of having conducted it with violations. Taking this into account, we recommend developing a separate local regulatory act (LNA) regulating indexing.
Where are mistakes often made? Indexation should be carried out in relation to absolutely all employees of the company and its level should be the same for everyone. If in the LNA its level is indicated at 3% per year, you are obliged to index your income by this percentage. But the frequency of its implementation is not indicated anywhere, so you have the right to choose the frequency of indexing: once a year or, say, once every 2 years.
Extended vacations can be replaced with compensation, but not for everyone
Some employees are entitled to vacation longer than the usual 28 days:
- disabled people - 30 days - Art. 23 of Law No. 181-FZ;
- workers with hazardous working conditions - at least 35 days - Art. 117 Labor Code of the Russian Federation;
- employees with irregular hours - 31 days - Art. 119 Labor Code of the Russian Federation;
- workers of the Far North - 52 days, and from equivalent areas - 44 days - Art. 321 Labor Code of the Russian Federation;
- minors - 31 days - Art. 267 Labor Code of the Russian Federation;
- teachers of kindergartens, schools, universities and colleges - from 42 to 56 days - Art. 334 Labor Code of the Russian Federation;
- extended vacation for any employee, if the employer has decided so, and this has been written down in the employment contract.
Vacation days over 28 can be replaced with money. For a replacement, you must take an application from the employee. The employer himself cannot make such a decision - Art. 126 Labor Code of the Russian Federation.
Vacation cannot be replaced with money for pregnant women, minors and workers with hazardous working conditions - Art. 126 Labor Code of the Russian Federation.
Article: list of all vacations due to the employee
