Delayed vacation and vacation pay: consequences for the employer

A selection of questions from readers.

My vacation pay is being delayed; I have been on vacation since 08/01/19.

You have the right to demand from the employer monetary compensation for the delay in the payment of vacation pay in the amount of not less than one hundred and fiftieth of the key rate of the Central Bank of the Russian Federation in effect at that time from the amounts not paid on time for each day of delay, starting from the next day after the established payment deadline until the day of actual payment inclusive.
Art. 236 Labor Code of the Russian Federation. Contact the prosecutor's office or the labor inspectorate, they will conduct an inspection and issue an order to eliminate the violation.

Can vacation be delayed and for how long?

According to Art. 124 of the Labor Code of the Russian Federation, if the employee was not paid in a timely manner for the duration of the annual paid leave or the employee was warned about the start time of this leave later than two weeks before its start, then the employer, upon the written application of the employee, is obliged to postpone the annual paid leave to another agreed period with an employee.

In exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization or individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.

It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions.

Thus, vacation can be delayed only with the consent of the employee.

Does the employer have to delay the next vacation?
No. If you were included in the vacation schedule in advance and wrote an application 14 days in advance.

Maybe, if it is related to the production needs of the organization. Then the employer will be obliged to provide vacation at a time convenient for you outside the previously agreed schedule.

The employer is obliged to provide you with leave for the previous year of work within 2 years, but only with your consent.

The employer's actions are unlawful, because according to Art. 123 of the Labor Code of the Russian Federation, the vacation schedule is mandatory for both the employer and the employee. Transferring your vacation to another date is possible only with your consent (Article 124 of the Labor Code of the Russian Federation).

Do they have the right to delay vacation pay and pay it only after going on vacation?

The delay is unlawful.

How long does it take to write a vacation application and can vacation be delayed?

The application must be submitted in advance; three days before the start of the vacation, vacation pay must be paid. They cannot detain; leave is granted strictly according to schedule (Article 123 of the Labor Code of the Russian Federation).

The boss delays the signature on the vacation application.

Contact the labor inspectorate.

Does an employer have the right to delay vacations until the end of the working year?

No, it doesn't. Vacation is granted based on the vacation schedule. Article 123 of the Labor Code of the Russian Federation - the vacation schedule is mandatory for the employer and for the employee.

I am on maternity leave, our institution has already delayed the payment of wages for 7 days, and I have child care benefits! I want to properly file a claim.

When you compose it in the name of the manager, do not forget to add a clause about the penalty, which is accrued from the first day of the delay, and indicate the calculation.

My wife is a contract worker and was supposed to be on maternity leave until March 2021, but decided to leave earlier; does she have the right to a reduced working day? Don't work shifts? Don't stay late after work at work (work overtime)?

If we are talking about military service, then your wife, until the child reaches 3 years of age, in accordance with paragraph 9 of Art. 10 Federal Law “On the status of military personnel” in conjunction with Art. 259 of the Labor Code of the Russian Federation cannot be involved without her consent in the performance of military service duties at night, on non-working days, weekends and holidays. As for the shortened day, it is not provided for by current legislation for military personnel.

My husband works in the organization, either through labor or under a contract! Salaries are delayed, sometimes they give an advance, sometimes they don’t! I did not take vacation during the period of work. Wants to leave work. What payments are due?

He is entitled to a salary for the period he worked, and compensation for vacation days not taken off.
I have been on vacation since June 25, 2019; I have not received my vacation pay until today. How long can payment be delayed by law?
Since 2021, I should have received internships, but I haven’t received them due to the fact that they forgot about me. Is this punishable? Certainly. Write a complaint to the labor inspectorate and the prosecutor's office.

What to do in the following case: an in-person meeting of the owners of an apartment building has been held, the elected chairman of the meeting is delayed on vacation and does not have time to return within 10 days to sign the protocol and submit it to the management company. Who can sign the protocol for him and how to do it correctly?

During the absence of the chairman, there must be a person who replaces him and acts by proxy.

I work officially. Now on maternity leave for up to 1.5 years. The maternity leave was supposed to arrive on the 15th, today I wrote to the accountant. She said they would come today, but they never came. How long can an employer delay maternity leave?

The legislation does not establish a time limit for delaying transfers, so it is impossible to answer on the merits.

What is the period for payment of vacation pay provided by law?

The three-day period before the start of the vacation, during which the organization is obliged to pay vacation pay to the citizen, is determined by Article 136 of the Labor Code, and Articles 114 and 115 indicate that if these days fall on weekends or holidays, then the money is accrued in advance.

Important! Labor law prohibits the accrual of vacation pay in installments.

In practice, most employers tend to transfer them much earlier, since delays sometimes arise due to unforeseen circumstances: for example, a bank delay in a transaction.
In this case, the organization will be obliged to additionally pay the employee for each day of delay, regardless of the reason. Since payment of annual leave is the employer’s responsibility, he cannot justify the delay in transferring finances by ignorance of the employee’s retirement, lack of funds, etc.

conclusions

If an employee is not paid vacation pay, he has the right to demand money from the employer, as well as complain to the relevant authorities - the State Labor Inspectorate, the court, the prosecutor's office.

To consider the case, it is necessary to draw up and submit a complaint that the payment is being delayed. An employer who violates the deadlines faces a fine, an obligation to provide additional compensation, and in some cases the matter may lead to criminal liability.

The calculation of compensation is carried out as 1/150 of the refinancing rate for each day of delay, taking into account the amount not paid on time.

Where to go if you haven't paid your vacation pay

As practice shows, most issues of calculating vacation pay on time are resolved at the stage of notifying the manager of the employee’s intention to appeal to the labor inspectorate or court.
But if this does not bring results, the citizen can submit an application to the specified authorities to bring the company’s management to justice.

The application is drawn up in free form in compliance with the rules for maintaining official documentation and indicating the following information:

1. Details: Full name of the person to whom the document is sent, Full name, registration address and contact telephone number of the applicant, full name of the employing organization indicating the form of ownership, contact telephone number, address of the head office and Full name O. manager.
2. The essence of the complaint: the date of leaving on vacation according to the schedule, the amount due for payment, the expected date of payment, the number of days of delay.
3. Link to the document on the basis of which the applicant cooperates with the organization (employment contract), its details.
4. The applicant’s demands: consideration of the complaint, inspection of the enterprise’s activities, collection of debt from the employer along with compensation.
5. Date of document preparation and signature.

Sample application for late payment of vacation pay to the labor inspectorate:

Procedure

Since it is impossible to provide for the degree of liability of the employer if vacation pay is not paid, what to do is determined based on previously studied circumstances. A sequence of steps that will help restore justice and hold management accountable:

1. Negotiations with the manager and decision-making on postponing vacation.
2. If the administration refused to pay the funds before the start of the vacation period, the right to claim vacation pay continues after the end of the vacation.
3. The labor inspectorate is the first point of contact for anyone affected by violations of labor laws. A complaint is drawn up describing the situation and indicating the deadlines that were not met.
4. Most claims are withdrawn already at the stage of verification by the labor supervisory authority. If management ignores the instructions of a government body, the employee will have to hold the organization’s officials accountable by going to court and the prosecutor’s office.
5. In the text of the claim, the employee describes the situation and points out the violation, referring to the provisions of Art. 124 Labor Code of the Russian Federation. The court hearing is held within 1 month from the date of acceptance of the plaintiff’s appeal. The writ of execution is received after the period for challenging has expired and the court decision has entered into force.
6. An employer whose actions the court finds to be a violation of the rights and interests of employees will receive a court order to force the repayment of debt for the vacation period.

No special measures are required to prepare a claim, and the document itself is drawn up taking into account the general parameters of the Code of Civil Procedure of the Russian Federation. The court obviously adheres to the injured party in the labor relationship, so the chances of making a decision to satisfy the legal requirements are very high.

If the administration continues to persist, citing a lack of money and difficulties with financing, the bailiffs responsible for the execution of the court order will become involved in the issue, including through the forced sale of property and the seizure of company accounts.

Such powers force managers to be more attentive to their responsibilities, because the consequences of the payment of vacation pay being disrupted due to the employer’s fault threaten much greater problems, including the seizure of accounts. It is easier for a company to pay out funds than to deal with judicial authorities and the prosecutor’s office.

To be able to go to court, you will have to go through a mandatory pre-trial settlement procedure, warning management of your intention to demand money in court.

Additionally, the injured vacationer has the right to write a statement to the prosecutor’s office with a request to investigate the fact of the complaint.

The consequences of non-compliance for the employer itself are too serious compared to the amount underpaid. For this reason, if there are no objective circumstances under which the company becomes bankrupt, most of the claims are dropped even before the person goes to court.

Employer's liability for delay

When an employee goes to court or the prosecutor's office with a statement about late payment of the vacation period, the company not only undertakes to accrue compensation, but also becomes liable.
Most often, fines are applied, however, in case of serious violations and repeated cases of bringing such issues to court, the responsible official may be subject to stricter administrative and even criminal liability.

Amounts of fines for late payment

Penalties for delaying vacation pay:

• for officials - up to 5 thousand rubles;
• for individuals who are individual entrepreneurs - 1-5 thousand rubles;

In case of repeated violations, the amount of fines increases, and other penalties are applied to officials and organizations - removal from office for 1-3 years and temporary or complete suspension of activities, respectively.
Criminal liability, according to Article 145 of the Criminal Code, can be a fine of 120 thousand rubles. or imprisonment for up to three years.

In what cases is compensation not paid?

The employer has the right not to pay vacation compensation to a resigning employee only if he has no unused vacation days.

That is, if by the time the legal relationship between the parties ends, the employee was granted leave for the year in which the dismissal occurred, he does not have the right to compensation. Moreover, if an employee took all the vacation days due to him for the year, but did not work it out to the end, he will have to return a proportional part of his vacation pay to the employer.

Upon dismissal for a number of reasons (for example, by agreement of the parties, at his own request), the employee has the right to demand that the employer provide him with leave followed by dismissal (Part 2 of Article 127 of the Labor Code of the Russian Federation). In this case, the resigning person will be paid vacation pay, but he will not have any unused days of rest - and the employee will not receive the right to compensation.

We invite you to learn more about the payment of vacation pay upon dismissal of your own free will.

Right to rest

First of all, you need to figure out who can rest and when.
According to Article 114 of the Labor Code of the Russian Federation, an employee has the right to annual leave. The number of days of legal rest depends on many factors:

• length of service in the organization;
• special working conditions specified in the employment contract;
• climatic conditions at the place of work;
• the employee’s rights to additional leave, voluntarily prescribed by the employer in the collective agreement or internal regulations.

A standard vacation lasts 28 days (Article 115 of the Labor Code of the Russian Federation). In this case, we are talking about calendar days, including weekends, but excluding public holidays (this is a closed list of dates prescribed in Article 112 of the Code).

For example, an employee wrote an application for leave from March 1 to March 20, 2019. This is a period of 20 days, if you count strictly according to the calendar. But March 8, an official holiday, falls within this period. Therefore, the duration of the vacation will be only 19 days. And it is on the basis of 19 days that vacation will be paid.

Please keep in mind that postponing weekends is not considered a holiday. That is, in the above example, despite the fact that Monday March 7 was a non-working day, it does not apply to holidays and does not reduce the number of vacation days.

Additionally, the law provides for cases of increasing the duration of rest.

The table shows the minimum duration of the increase to 28 days.

If there is no desire to rest for longer than 4 weeks, then the law provides for the possibility of replacing additional leave with monetary compensation (Article 126 of the Labor Code of the Russian Federation).

The frequency of employee rest is prescribed in the vacation schedule approved annually.

Two weeks before the start of his vacation, the employee must be notified against signature. If his plans change, then upon application, the vacation dates can be postponed.

Payment order

To calculate vacation pay, the concept of average wages (AWS) is used.
When calculating this indicator, you must use the formula: SWP = ZP / 12 / 29.3

The numerator (ZP) will include all accruals provided for by the remuneration system and the employment contract for the 12 months preceding the vacation.

The denominator includes 12 calendar months and a certain number 29.3. This is exactly what is considered to be the average number of days in a month in the 2021 edition of the Labor Code.

Wages do not include all social payments (sick leave, benefits, etc.), vacation pay and bonus payments that are one-time in nature and not reflected in the remuneration system or employment contract.

Now he is going on vacation for 14 days. In this case, the amount of vacation pay will be (30,000*12 5,000 5,000)/12/29.3*14=14,732.65 rubles.

Deadlines

Vacation pay must be paid no later than three days before the start of the vacation.
Moreover, if such a day falls on a weekend, then the money is transferred the day before. But there are cases when an employee writes a statement and goes on vacation the very next day. The legislator does not prohibit such surprises with the mutual consent of the parties. In this case, you must understand that the employer cannot comply with the requirements of the Labor Code.

And it would seem that in such a situation the violation of the law occurs through no fault of the company. But there is a practice when companies are fined in these cases too.

For most small commercial organizations, the Labor Inspectorate is a kind of mythical body that can only come after receiving a complaint from an employee.
But for budgetary organizations and for organizations that are large taxpayers, the prospect of meeting such an inspector is very real.

How to reflect vacation pay in 6-NDFL

In reporting form 6-NDFL, vacation payments are reflected in sections 1 and 2. Section 1 includes vacation pay withheld in the last quarter of the reporting period. Field 021 indicates the last day of the month in which vacation pay was paid, and field 022 indicates the tax withheld. In section 2, in lines 110 and 112, include the amount of income, in line 140 - the calculated tax, in line 160 - personal income tax withheld from vacation pay.

If vacation pay is paid in one month, and vacation begins in the next, then all income is included in 6-NDFL in the payment period.

Example

The employee went on vacation from July 1 to July 14.
The vacation began on Thursday, July 1, and vacation pay in the amount of 30,000 rubles was paid on June 25. In section 1 in line 021 you need to enter the date “06/30/2021”, and in line 022 indicate the amount of 3,900 rubles - personal income tax withheld from vacation pay. In section 2, lines 110 and 112 indicate the amount of vacation pay - 30,000 rubles, in lines 140 and 160 the calculated and withheld tax, respectively - 3,900 rubles each. Calculation of vacation pay and orders in one program.
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Who is responsible?

Most often, an organization can be held accountable based on a complaint from the employee himself. But sometimes violations can be discovered during a scheduled inspection by the Labor Inspectorate.

When imposing fines, they are guided by the Code of Administrative Offenses.

Or it may happen that inspectors will resort to the Criminal Code if the delays in payments are very large.
Moreover, if in the case of payment of compensation, the presence or absence of the employer’s fault is not taken into account, then this is the main argument for bringing to administrative or criminal liability. And depending on the seriousness of the violation, a fine may be imposed on the official or the organization as a whole, or there may be talk of disqualification or even imprisonment of the manager.

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Assistance from a lawyer regarding the collection of vacation pay

To guarantee the use of your labor rights, you must enter into an agreement with your employer. Only in this case can the employee demand fulfillment of vacation pay obligations.

Otherwise, it will not be possible to collect the debt. If the employer refuses to transfer due payments, we recommend using the services of an experienced lawyer.

You can get a free consultation on our website. Contact our lawyers right now!

The Constitution and the Labor Code (LC) of the Russian Federation provide for the right of every employee to rest. It is worth noting that at this time not only his job is preserved, but also his earnings. Failure to pay vacation pay is a gross violation of the law. It is important to know the timing of settlements and what to do if the payment is not made on time.

• 1 Deadlines for payment of vacation pay
• 2 What to do if there is a delay or non-payment?
• 3 Where to go? 3.1 Labor inspection
• 3.2 Prosecutor's office
• 3.3 Court

Basic norms

Employers cannot rely on their ignorance of employee leave or lack of funds.

The corresponding application is written by an employee who wishes to go on a well-deserved vacation two weeks before its planned start. In addition, each enterprise draws up a special schedule fixing vacation periods for all employees.

Managers and operating personnel must familiarize themselves with it.

We invite you to read: Claim in the magistrate's court for debt collection

Vacations are paid from funds accumulated in the reserve fund - every enterprise or organization has one.

It is also unacceptable to pay vacation funds in installments if the employee wants to take all the vacation allotted to him for the year of work.

Division into shares is possible only when registering a vacation period divided into several parts. The minimum amount of vacation cannot be less than two weeks! (Article 136 of the Labor Code).

If you want to find out how to solve your particular problem, please contact us through the online consultant form or call:

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