Irregular working hours. What is an irregular working day? Part-time and part-time work

For him, to perform overtime work (Article 99 of the Labor Code of the Russian Federation) or if he works on irregular working hours (Article 101 of the Labor Code of the Russian Federation). Let’s say right away that employees do not always correctly understand what working with irregular working hours means. Quite often, they believe that working in a named mode means that they can come to and leave work as needed. However, it is not. In this article we will talk about irregular working hours and explain how work is structured in this mode.

The working hours of creative workers differ significantly from the generally accepted eight-hour workday, as they depend on the schedules of performances, performances and rehearsals. In addition, such workers often have to go on tour to other cities. Nevertheless, the standard working time is, as a general rule, the same for all workers, including creative ones, and cannot exceed 40 hours per week (Article 91 of the Labor Code of the Russian Federation), unless the creative worker belongs to the category of persons for whom reduced working hours are established. weeks. Let us recall that these are (Article 92 of the Labor Code of the Russian Federation):

minor workers under the age of 16 (no more than 24 hours per week);

teenagers from 16 to 18 years old (no more than 35 hours per week);

workers - disabled people of group I or II (no more than 35 hours per week);

employees whose working conditions at their workplaces, based on the results of a special assessment of working conditions, are classified as harmful 3rd or 4th degree or dangerous working conditions (no more than 36 hours per week).

Standard working hours can be developed under various working conditions, including irregular working hours.

The concept of irregular working hours

The definition of this operating mode is given in Art. 101 Labor Code of the Russian Federation. This is a special regime in which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

It should be noted that many employers, referring to this norm, force employees to work overtime every day, covering up overtime work with irregular working hours. However, labor legislation considers irregular working hours not as an extended working day compared to the generally established one, but as a special procedure for the distribution of working time within the working day and (or) working week. Its specificity lies in the fact that in most cases the employee is subordinate to the general operating hours of the organization, but at the same time he can stay at work to perform his job functions beyond a certain length of the working day (shift) or come to work before the start of work (shift) (Appeal ruling of the Moscow City Court dated February 14, 2017 in case No. 33-5691/2017).

Note: The nuance of working in irregular working hours is that the employee is involved in work beyond the established working hours occasionally, that is, infrequently.

That is, if in an institution the working day begins, for example, at 8.00 and ends at 17.00, then an employee with irregular working hours must come to work and leave it at the specified time.

The establishment of irregular working hours does not imply a flexible work schedule. That is, if an organization starts working at 8.00, the employee cannot come, for example, at 9.00 or 10.00 and leave before the end of work. And this is confirmed by judicial practice.

Thus, an employee was reprimanded for being 25 minutes late for work. He appealed to the court with a demand to declare the collection illegal, since he believed that there could be no delay, since he had an irregular working day. The court, refusing the employee, indicated that an irregular working day presupposes work outside the established working hours and does not provide for the release of the employee from work within the established working hours, as well as the arbitrary independent determination by the employee of the time of arrival and departure from work, and the assumption of lateness for work (Appeal ruling of the Moscow City Court dated November 26, 2015 No. 33-44271/2015).

Who can have irregular working hours?

The employer independently determines the list of employee positions for which irregular working hours are established. It is important that such a list is enshrined in a collective agreement, agreement or local regulation adopted taking into account the opinion of the workers’ body.

Typically, such a list includes positions of workers whose duration of work cannot be accurately calculated (heads of institutions, business personnel and technical service workers), as well as those who plan the implementation of assigned tasks at their own discretion and whose working day is divided into intervals of unspecified duration.

Read also

• Features of irregular working hours
• What to do if a special assessment reveals harmful working conditions?
• A holiday is not a reason to rest
• Summarized working time recording
• Attracting to work on May holidays workers who have irregular working hours

When determining the category of workers with irregular working hours, it should be taken into account that this category cannot include workers who, in accordance with Art. 94 of the Labor Code of the Russian Federation provides for a maximum norm for daily work (shift). These employees include, but are not limited to:

workers aged 14 to 18 years;

disabled people whose daily work duration is established according to the conclusion;

workers engaged in work with harmful and (or) dangerous working conditions.

If employees perform part-time work, irregular working hours can also be established for them. A similar position is contained in the Letter of Rostrud dated 04/19/2010 No. 1073-6-1.

At the same time, Art. 351 of the Labor Code of the Russian Federation determines that the specifics of regulating the labor of creative workers in organizations of cinematography, media, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in particular the specifics regulation of working time and rest time, remuneration, in accordance with Art. 252 of the Labor Code of the Russian Federation are determined not only by labor legislation, but also by collective agreements, agreements, and local regulations.

An example of formalizing the establishment of irregular working hours and compensation for work in this mode is Order of the Russian Federation of June 22, 2009 No. 146.

Overtime compensation

Work on irregular working hours is compensated to the employee only by additional leave. Moreover, the right to such leave arises regardless of whether the employee was involved in work beyond the norm or not. If the employment contract reflects the condition of irregular working hours, then it will not be possible to avoid the provision of additional days of rest.

According to Art. 119 of the Labor Code of the Russian Federation, the duration of such leave is determined by a collective agreement or internal labor regulations and cannot be less than three calendar days.

Additional leave for irregular working hours may be added to the annual main paid leave (including extended leave), as well as to other annual additional paid leave.

For your information: the rules for providing additional paid leave to employees with irregular working hours in federal government institutions are determined by Decree of the Government of the Russian Federation of December 11, 2002 No. 884.

Question:

Is it possible to provide employees with an additional day off for overtime?

Answer:

Indeed, quite often employees ask their employer for a day off, especially for drivers who often have to stay late after finishing work. However, overtime during irregular working hours is not equal to overtime during overtime work, in which the employee has the right to choose additional rest time instead of increased pay ( Art. 152 Labor Code of the Russian Federation). For irregular working hours, only vacation is entitled. Therefore, providing an additional day off remains at the discretion of the employer.

Question:

Is it necessary to pay compensation for unused vacation for irregular working hours when dismissing an employee who has not worked a full year?

Answer:

Article 127 of the Labor Code of the Russian Federation obliges the employee to pay compensation for all unused vacations upon dismissal. This means that it must be paid, but for the number of days corresponding to the time worked. For example, an employee is entitled to 4 days of additional leave after working for 8 months. Upon dismissal, he is entitled to compensation for 2.67 days (4 days / 12 months x 8 months).

Additionally, we note that the employee has the right to receive compensation for unused days of additional leave not only upon dismissal, but also during work. This right is granted to him by Part 1 of Art. 126 Labor Code of the Russian Federation: part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation.

Establishing irregular working hours

If the position for which the employee is employed requires work on irregular working hours, before concluding an employment contract, he must be familiarized with local regulations that establish a list of positions with irregular working hours, as well as the type and amount of compensation for work in this mode. After this, an employment contract is concluded, which must include a condition on working on irregular working hours (part 2 of article 57, part 1 of article 100 of the Labor Code of the Russian Federation).

The next step will be the issuance of an order for employment, in the column “Conditions of employment” in which you need to indicate the establishment of irregular working hours. But there is no need to enter information about the definition of such a regime - the employment record is made according to the general rules.

Note: if the employment contract contains a condition for working on irregular working hours, and the position is not included in the corresponding list, disciplining an employee who refused to perform work outside the normal working hours will be illegal (see, for example, the Appeal ruling of the regional court dated 07/08 .2014 in case No. 33-1982/2014).

If the need for irregular working hours arose after hiring (for example, when transferring to a position requiring work in such a mode), the employer must familiarize the employee with local regulations establishing a list of positions with irregular working hours, as well as the type and amount of compensation for working in this mode.

If such a regime is just being introduced, the employee must be notified of the change in working conditions. It’s good if the employee agrees to the introduction of a new work schedule. And if not? In this case, the employer should be guided by Art. 74 of the Labor Code of the Russian Federation, which allows the employer to change the terms of the employment contract for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.).

The employee is notified in writing at least two months before the introduction of a new work schedule, indicating the reasons why his position is included in the list of employees with irregular working hours. If you do not agree to work under the new conditions, the employer is obliged to offer the employee in writing another available job (both a vacant position or work that meets the qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health.

In the absence of the specified work or refusal of the proposed employment contract, the employment contract is terminated under clause 7, part 1, art. 77 Labor Code of the Russian Federation.

If you agree to a new work schedule, everything is much simpler: an additional agreement to the employment contract is concluded. It indicates that from such and such a date the employee has a special working regime, and also reflects the duration of additional paid leave and other changing conditions, if necessary. Based on the signed agreement, an order is issued to determine the irregular working hours in any form.

Is it necessary to register for employment outside working hours?

Article 101 of the Labor Code of the Russian Federation states that engaging an employee to work beyond the norm is carried out by order of the employer, and does not specify in what form it should be done. Employment law experts recommend documenting involvement in work outside of normal working hours. However, when considering disputes related to the performance of work during irregular working hours, the courts do not exclude the oral form.

For example, the Supreme Court of the Republic - Alanya in Determination No. 33-168/2014 dated February 19, 2014 in case No. 2-241/13 indicated that a decision to involve an employee in performing duties beyond the established normal working hours can be made and communicated to the employee direct (boss) orally, since the Labor Code of the Russian Federation does not provide for a specific form (oral or written) in which the employer gives orders to engage the employee to work outside of working hours.

Processing accounting

If an employee is assigned an irregular working day, then work beyond the established working hours is not reflected in the working time sheet.

Some experts still believe that it is simply necessary to include processing in the report card, since according to Part 4 of Art. 91 of the Labor Code of the Russian Federation, each employer must keep accurate records of the working time worked by each employee. However, indicating overtime on the timesheet may lead to confusion between irregular working hours and overtime work and, accordingly, the latter will be paid.

We believe that it is necessary to record overtime, not in a time sheet, but in some other document, for example, an appropriate journal. Accounting for overtime may be useful in the event of any emergency: it will be possible to say for sure whether the employee was at work or not.

Work on weekends and holidays

Sometimes employers believe that employees with irregular working hours can be required to work on a weekend or holiday without any compensation. However, this is a mistake.

According to the general rule established by Art. 113 of the Labor Code of the Russian Federation, work on weekends and non-working holidays is prohibited, except in cases provided for by the Labor Code. Working irregular hours does not apply to such cases. Consequently, engaging such employees to work on a weekend or holiday is carried out according to general rules: consent is asked (in some cases it is not necessary), certain categories of employees are familiarized with the right to refuse said work, an order is issued and guarantees and compensation are provided - increased pay work or providing additional rest time.

The court came to a similar conclusion in the Appeal ruling dated June 16, 2016 No. 33-2113/2016.

Work at night

Let us remind you that according to Art. 96 of the Labor Code of the Russian Federation, the time from 22.00 to 06.00 is considered night time and work at this time will be a deviation from the norm. This means that recruitment to work at night must be properly formalized and compensated by increased wages in accordance with the requirements of Art. 154 Labor Code of the Russian Federation.

Summarize

Irregular working hours may be established for employees whose professions or positions are included in the list of professions and positions with irregular working hours. Such a list may be determined by order of the employer or other local regulatory act of the institution or a collective agreement.

The employer is not required to pay extra for work on irregular working hours, since this is not overtime work. In addition, the Labor Code stipulates that employees are guaranteed additional paid leave for working irregular working hours. Failure to provide such leave may result in negative consequences for the employer, including administrative liability.

additional leave employment contract working conditions

New edition of Art. 101 Labor Code of the Russian Federation

Commentary on Article 101 of the Labor Code of the Russian Federation

An irregular working day is a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours. The list of positions of employees with irregular working hours is established by a collective agreement, agreement or internal labor regulations of the organization.

The peculiarity of the considered working hours is that the employee is subject to the general working hours of the organization, but may stay at work at the request of the employer to perform his job duties beyond the normal work shift or be called to work before the start of the working day.

It should be noted that employees can be involved in working with irregular working hours only to perform their labor functions, which they must perform under the employment contract. Consequently, an employee cannot be obligated to perform any other types of work, including outside the normal working hours.

The Labor Code of the Russian Federation stipulates that irregular working hours are established only for individual employees included in a special list (it is attached to the collective agreement or internal regulations in force in the organization). This list can also be established in industry, regional and other agreements.

Irregular working hours may be used for administrative, managerial, technical and business personnel; persons whose work cannot be counted in time; persons who allocate time at their own discretion; persons whose working time, due to the nature of the work, is divided into parts of indefinite duration.

It should be noted that, when applying the rules of Article 101 of the Labor Code of the Russian Federation, the employer must not obtain the consent of either the employee himself or the representative body of employees to attract (on days of production necessity) employees to work beyond the established working hours. This right of the employer is already provided for in the terms of the employment contract. The employee does not have the right to refuse to perform such work. Otherwise, there is a gross violation of labor discipline. Note that this article contains a definition of irregular working hours, which states that in accordance with this mode of work, employees may be involved in performing their labor functions outside the working hours established for a given employee.

The establishment of irregular working hours does not mean that these workers are not subject to the basic norms of labor legislation on working hours and rest periods. Therefore, recruitment to work outside the established working hours cannot be systematic.

Since working with irregular working hours involves certain overtime in excess of normal working hours, the Code, as compensation, provides that employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by the collective agreement or internal labor regulations. In the event that such leave (at least three calendar days) is not provided, overtime in excess of normal working hours is compensated with the written consent of the employee as overtime work (Article 119 of the Labor Code of the Russian Federation).

Another comment on Art. 101 Labor Code of the Russian Federation

1. The uniqueness of the irregular working day regime is that an employee can, by order of the employer, perform his job duties outside the working hours established for him in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements, local regulations, employment contracts. In Art. 101 of the Labor Code of the Russian Federation emphasizes that such processing is allowed only if necessary and should not be systematic, but episodic.

2. The list of positions of workers with irregular working hours usually includes workers:

a) whose work during the working day cannot be accurately recorded;

b) distributing working time at their own discretion;

c) whose working time, according to the nature of the work, is divided into parts of indefinite duration.

3. In case of irregular working hours, overtime in excess of the standard working time established for the employee is not considered as overtime work, since in this case the very nature of the work implies the possibility of overtime, which, moreover, as a rule, cannot be accurately counted. In this regard, compensation for overtime during irregular working hours is carried out not according to the rules relating to overtime work, but by providing additional leave (see Article 119 of the Labor Code of the Russian Federation and the commentary thereto).

• ‹ Article 100 of the Labor Code of the Russian Federation. Working hours
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Article 101 of the Labor Code of the Russian Federation. Irregular working hours

Article 101 of the Labor Code of the Russian Federation with comments and amendments for 2016-2017.

Irregular working hours are a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the established working hours. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.

Commentary on Article 101 of the Labor Code of the Russian Federation:

1. Article 101 of the Labor Code of the Russian Federation establishes the concept of “irregular working hours”. The main features of irregular working hours are:

• working outside the established working hours. There are no restrictions on the length of work of persons working part-time (Article 284 of the Labor Code) during overtime (Article 99 of the Labor Code). An employee can be involved in work both before the start of the working day (shift) and after the end of the working day (shift);
• attraction to work is caused by a need determined by the interests of the organization and the labor function performed by the employee (for example, the employee belongs to the administrative staff - the head of the workshop);
• involvement in work outside the established working hours is sporadic, i.e. cannot be a system.

The procedure for engaging in work outside the normal working hours has been established: an order from the employer is required; the positions of those involved must be included in the list of positions of employees with irregular working hours, which is established by a collective agreement, agreement or local regulation adopted taking into account the opinion of the representative body of employees. Representatives of workers in social partnership are trade unions, therefore the adoption of a local regulatory act is carried out by the employer in the manner established by Art. 372 TK.

The employee's consent to be involved in such work is not required. At the same time, the employer does not have the right to entrust him with performing work that is not determined by his labor function.

2. According to Art. 119 of the Labor Code, employees with irregular working hours are provided with annual additional paid leave.

3. Rules for providing annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget, approved. Decree of the Government of the Russian Federation of December 11, 2002 N 884 (SZ RF. 2002. N 51. Art. 5081), it is established that the list of positions of workers with irregular working hours includes management, technical and economic personnel and other persons whose work is in the flow of the working day cannot be accurately recorded, persons who distribute working time at their own discretion, as well as persons whose working time, due to the nature of the work, is divided into parts of indefinite duration.

Many workers mistakenly believe that if they are constantly late at work and their working day does not have a clear schedule, then it can be called irregular. In meaning, it is possible, but by law it will be considered as such if a corresponding entry is made in the employee’s employment contract, and along with it there will be additional social guarantees provided to employees with official irregular hours. Let’s figure out what an irregular worker means in 2019 according to the Labor Code of the Russian Federation. Changes and latest news are further in the article.

Flexible work schedules, overtime work, as well as banal overtime at the will or whim of the employer have little in common with irregular work hours. In accordance with Art. 101 of the Labor Code of the Russian Federation, which contains the corresponding concept, an irregular working day is a special mode of work when an employee remains to work after a working day not constantly, as is often practiced in Russian enterprises, but occasionally at the verbal command of the employer. Not any employee can be left “after work”, but only one who occupies a position that, in accordance with the collective agreement or other regulatory act of the employer, is included in the list of positions with irregular working hours.

Flexible hours, long hours, overtime - what's the difference?

As mentioned above, many mistakenly mistake a flexible schedule for an irregular working day, when an employee works the working hours established by the employment contract without a fixed start and finish of the working day, which are determined by mutual agreement (Article 102 of the Labor Code of the Russian Federation). However, these are completely different things. Unlike a flexible work schedule, which is also fixed in the employment contract or an additional agreement to it, irregular working hours have clear boundaries. If the TD states that the employee must start work at 10:00, then he cannot come to work at 12:00, since he has a position with an irregular work day. He must arrive at 10:00, otherwise he risks receiving a disciplinary sanction: a reprimand or reprimand from his superiors (Article 192 of the Labor Code of the Russian Federation). And for being 4 hours or more late you can even get fired.

Thus, irregular working hours, unlike a flexible schedule, have clear boundaries, but they can be “extended” at the verbal request of the employer. Such requests may be sporadic. The employee's consent to work beyond normal working hours is not required, nor is additional payment required.

The difference between irregular working hours and overtime lies in the payment and the need to obtain the employee’s consent for overtime. Let's take a closer look at the difference.
Irregular working hours:

• does not require a person’s consent to engage him in work outside of working hours;
• not formalized by order (an oral order from superiors is sufficient);
• payment for irregular working hours is not due;
• the number of occasional exits “after work” is not regulated;
• employees are entitled to leave for irregular working hours - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three additional days of leave. Naturally, paid. The employment or collective agreement may stipulate more. The days are required to be provided even if the employer did not exercise his right to occasionally involve the employee in work duties outside of normal hours during the year.

Overtime in 2019:

• requires the mandatory consent of the employee, excluding emergency cases;
• executed by a written order from the employer;
• the duration of overtime work cannot exceed 4 hours for 2 consecutive days and 120 hours per year;
• paid at least one and a half times the amount for the first 2 hours and at least
• twice in the following hours;
• Additional leave is not allowed.

As can be seen from the comparison, according to vacation, additional days are awarded for irregular working hours, but not for overtime work. The opposite situation occurs with additional payment, which is made only for overtime work.

How is an irregular working day formalized in 2019?

If an employee periodically performs work duties outside of established working hours, this must be reflected in his employment contract (Article 100 of the Labor Code of the Russian Federation). Corresponding notes are also included in the internal regulations of the enterprise where the regulation on irregular working hours should be issued. An employee whose work duties extend over a standard 8-hour working day or over a 10-12 hour shift should not neglect the official assignment of an irregular day. After all, in addition to praise from management, it also guarantees the employee additional leave for irregular working hours. This should also be written about in the contract with the employee.

How many hours can you overwork?

Lawyers are often asked the question: “An irregular working day is how many hours?” The Labor Code does not regulate the hours of irregular working hours and does not decipher how many total hours an employer can involve an employee in irregular work. However, if the employer is too zealous in its right to involve the employee in performing duties beyond the normal working hours (does this not occasionally, but on an ongoing basis), then this can be recognized as overtime work and “knock out” the due compensation. To do this, you will have to contact the state labor inspectorate and the court. There are such cases in judicial practice.

We hope that after reading this article about long working hours: “What does this mean?” – you won’t ask anymore.

The realities of modern business are such that employees often have to stay late at work, come early, and work without lunch. In such situations, employers are in no hurry to pay for overtime, justifying it by the fact that employees have irregular days. Does working an irregular day really allow an employer to save on overtime payments?

Introductory information

The Labor Code sets clear boundaries for the working hours during which employees must perform their duties. As a rule, this is 40 working hours per week, which, with a five-day working week, gives 8 working hours per day. You can make sure that an employee works outside of this time in two ways - by involving him in overtime work, or by introducing irregular working hours. The first method entails mandatory payment for each hour of overtime, and the total number of such hours is limited to 120 per year and four over two consecutive working days (Article 99 of the Labor Code of the Russian Federation). But no such restrictions have been established regarding irregular working hours, which makes it very attractive for the employer.

What is an irregular day?

Before moving directly to the consideration of issues arising in connection with irregular working hours, we need to dwell on this concept itself. According to Article 101 of the Labor Code, an irregular working day is understood as a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

Simply put, employees whose job responsibilities are such that they cannot always be performed during working hours can work in irregular working hours. As a rule, we are talking about employees whose work is related to customer service (after all, you can’t kick out a customer who arrived 10 minutes before the end of the working day). Or about employees representing the interests of the company in other bodies or organizations (courts, tax authorities, etc.), whose work schedule may not coincide with the employee’s work schedule.

But these are just examples. The Labor Code itself does not establish any restrictions on the number of employees who can be subject to irregular working hours (although there are still some exceptions, and we will discuss them below). Therefore, formally, both a cleaner and a manager of the highest rank can work on irregular hours.

What does an irregular day schedule give?

The first and most obvious advantage of the irregular day regime follows from its definition, which we gave above - employees can be assigned to perform work not only during working hours, but also outside it. But there are other advantages.

Thus, the introduction of an irregular day does not relieve the employee of the obligation to come to work on time, nor does it give the right to leave early. In addition, an irregular working day makes it possible to involve an employee in additional work at any time - both before the start of the working day and after it ends. This is confirmed by Rostrud in letter dated 06/07/08 No. 1316-6-1. The third advantage of an irregular day is that you do not need to obtain his written consent each time to engage an employee to work outside of official working hours. Moreover, the employee does not have the right to refuse processing.

Finally, this method of ensuring the presence of employees at work is quite simple to design.

How to enter an irregular day

Article 101 of the Labor Code establishes the following algorithm for introducing an irregular working day regime in an organization.

First, you should draw up and approve a list of positions for which irregular working hours are established. However, you need to remember some limitations. Thus, it is impossible to include in the list of workers who, by law, have a reduced working day (disabled people, minors, workers studying at universities, etc.). It will not be possible to establish an irregular day for employees with whom there was an agreement on a part-time working day, fixed in the employment contract. But a part-time work week (i.e., a regime when an employee works not five days a week, but, for example, two or three) is not an obstacle to irregular working hours.

After this document is drawn up, all employees whose positions are indicated in it must be familiarized with the list for signature. Accordingly, if an employee is hired for such a position, then before signing the employment contract he must be familiarized with the list, which is recorded by his signature indicating the date and time of familiarization.

The next document in which you need to fix the condition about irregular working hours is an employment contract with the employee. Moreover, this must be done without fail, since a working mode different from that generally accepted in the organization is a mandatory condition of the employment contract (Article 57 of the Labor Code of the Russian Federation). Accordingly, if a similar work regime is introduced for existing employees, then an additional agreement to the employment contract will be required. This means that it is possible to introduce an irregular working day in an organization only with the consent of the employee. But in the future, as we have already mentioned, it is not necessary to obtain consent for each case of processing.

This completes the formalization of the possibility of involving an employee in work outside the working day.

How to issue an order

If we read Article 101 of the Labor Code of the Russian Federation carefully, we will see that an employee should not work more than expected every day, but only by order of the employer. At the same time, the Code does not specify in any way how such an order should be drawn up. There is no unified form for this case. It turns out that the legislation allows for oral orders.

However, in our opinion, an oral order can only be used if there is another document where the processing will be recorded. The amount of time worked by each employee is recorded in the Time Sheet (form No. T-12 or T-13, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1). But, according to the procedure for filling out these documents, approved by this resolution of the State Statistics Committee, if an employee has an irregular day, then work in excess of the established working hours is not reflected in the accounting sheet.

At the same time, part 4 of Article 91 of the Labor Code imposes an unconditional obligation on the employer to keep records of the time actually worked by each employee. Therefore, whatever one may say, the organization will need to issue a document recording the processing time. In principle, this could be a statement similar to a Time Sheet. And the presence of such a document, in our opinion, may well replace a written order from the employer about the need to work outside working hours.

At the same time, we would like to warn employers against abusing the irregular working hours. After all, Article 101 of the Labor Code states that employees can be involved in extracurricular work only occasionally. Therefore, if, during an inspection, the labor inspectorate establishes that such work was of a permanent nature, the employer may be required to pay for this work as overtime, and even be fined for violation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Summarize. Irregular working hours are documented with the following documents:

— list of positions approved by the head of the organization;

— an employment contract indicating irregular working hours;

— a record of the actual work of employees during irregular working hours.

Payment for irregular days

Let us now turn to the issues of compensation for employees working outside of normal working hours. Unlike overtime work, which is compensated with money, working irregular working hours “threatens” the employee with additional days of paid leave. The duration of this leave is determined by the employer independently, but cannot be less than three calendar days (Article 119 of the Labor Code of the Russian Federation). Please note that this leave is available to all employees who hold positions included in the relevant list. It does not matter whether they were actually involved in work outside working hours or not.

1. Article 101 of the Labor Code of the Russian Federation establishes the concept of “irregular working hours”. The main features of irregular working hours are:

• working outside the established working hours. There are no restrictions on the length of work of persons working part-time (Article 284 of the Labor Code) during overtime (Article 99 of the Labor Code). An employee can be involved in work both before the start of the working day (shift) and after the end of the working day (shift);
• attraction to work is caused by a need determined by the interests of the organization and the labor function performed by the employee (for example, the employee belongs to the administrative staff - the head of the workshop);
• involvement in work outside the established working hours is sporadic, i.e. cannot be a system.

The procedure for engaging in work outside the normal working hours has been established: an order from the employer is required; the positions of those involved must be included in the list of positions of employees with irregular working hours, which is established by a collective agreement, agreement or local regulation adopted taking into account the opinion of the representative body of employees. Representatives of workers in social partnership are trade unions, therefore the adoption of a local regulatory act is carried out by the employer in the manner established by Art. 372 TK.

The employee's consent to be involved in such work is not required. At the same time, the employer does not have the right to entrust him with performing work that is not determined by his labor function.

2. According to Art. 119 of the Labor Code, employees with irregular working hours are provided with annual additional paid leave.

3. Rules for providing annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget, approved. Decree of the Government of the Russian Federation of December 11, 2002 N 884 (SZ RF. 2002. N 51. Art. 5081), it is established that the list of positions of workers with irregular working hours includes management, technical and economic personnel and other persons whose work is in the flow of the working day cannot be accurately recorded, persons who distribute working time at their own discretion, as well as persons whose working time, due to the nature of the work, is divided into parts of indefinite duration.

In a number of cases, the establishment of irregular working hours is provided for by regulatory legal acts. Thus, in paragraph 14 of the Regulations on the peculiarities of working hours and rest time for car drivers, approved. Order of the Ministry of Transport of Russia dated August 20, 2004 N 15 (BNA RF. 2004. N 45), indicates that drivers of passenger cars (except taxi cars), as well as drivers of expedition vehicles and survey parties engaged in geological exploration, topographic and geodetic and survey work in the field, irregular working hours may be established. In paragraph 37 of the Regulations on the peculiarities of working hours and rest time, working conditions for certain categories of railway transport workers directly related to the movement of trains, approved. Order of the Ministry of Railways of Russia dated March 5, 2004 N 7 (BNA RF. 2004. N 24), it is established that railway transport workers can be set to work with irregular working hours, with the exception of workers servicing passenger trains, train electricians, as well as supervisors, mechanics-foremen of passenger trains who are not on shift duty, whose working hours are determined in the same way as for conductors of passenger train cars.

The inclusion in the list of positions of workers with irregular working hours those whose work cannot be accurately recorded in time or who distribute work time at their own discretion means that they can independently decide on work outside the normal working hours, if this is determined by job descriptions or local regulations. A preliminary order from the head of the organization to involve them in such work is not required. In this situation, work on irregular working hours is carried out on the initiative of the employee himself.

The employer keeps records of the time actually worked by each employee under irregular working hours.

4. Workers with irregular working hours are subject to regulations on the duration of work (shift) (Article 94 of the Labor Code), on the start and end time of the working day (shift); they are generally exempt from work on weekends and non-working holidays (Article 113 of the Labor Code).

5. Applying Art. 101 of the Labor Code of the Russian Federation, it should be taken into account that if an employee works part-time (Article 93 of the Labor Code), then involvement in work in excess of the norm of daily work determined by agreement of the parties, but within the established duration of daily work (shift) at 5 and 6 days day work weeks, is not considered as work with irregular working hours.

6. Work with irregular working hours and overtime work is carried out outside the normal working hours. In contrast to the work regime with irregular working hours, engaging an employee to work overtime without his written consent is possible on the basis of Part 3 of Art. 99 Labor Code only in three strictly defined cases. The circle of workers involved in such work is wider (certain exceptions are established in Part 5 of Article 99 of the Labor Code), and a limit has been established regarding the standard of hours worked for each employee.