There are those among us who have not gone on vacation for years. Some - due to gross violations of the Labor Code of the Russian Federation by management, others - at their own request. You don’t want to take a vacation, although you are entitled to a vacation with all payments by law, and you are wondering: is it possible to receive vacation money, but skip the vacation? Is it possible not to postpone the vacation, but to let it “burn out”? Let's figure out in the article whether such a scheme does not contradict Russian legislation and what can be done legally.
legal information
First of all, it is necessary to understand in detail the legal framework of this issue, namely, to find out what annual paid leave is, the features of its registration and what documents must be provided to the employer. According to labor legislation, a citizen has the full right to annual leave. Its duration can be at least 28 days.
As for the specifics of the provision, the vacation schedule is approved in advance by the management of the enterprise. Sets a schedule at the end of the current work year.
ATTENTION !!! It is worth noting that according to the law, a citizen cannot force management to set a vacation at his own request. However, the employer must take into account the desire of the employee only when the person belongs to the following group of people: a single mother raising a child under the age of 14; a person who is disabled in groups 1, 2 and 3. This category also includes those employees who have more than 3 children in their care.
It should also be noted that the company management must notify the employee 2 weeks in advance that he will have to go on vacation. By the time the employee is notified, vacation pay and wages must be calculated. It is necessary to take into account the fact that in Russia some managers neglect the rules established by law for the payment of vacation pay, for example, they pay after going on vacation. This is a gross violation of labor legislation; this fact can be appealed in court or the labor inspectorate.
Reason for leave
According to Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year in the manner established by Art. 372 Labor Code of the Russian Federation.
At the same time, the vacation schedule is mandatory for both the employer and the employee.
Drawing up a vacation schedule is quite a responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, schedules are drawn up in structural units, and then a consolidated schedule is formed. Drawing up a draft vacation schedule for a unit can be entrusted to the heads of these units.
If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation, the personnel employee will already draw up a unified vacation schedule.
note
When drawing up a vacation schedule, the right of certain categories of employees to vacation at any time and the length of service required to provide such vacation should be taken into account. Don’t forget to include unused vacations from previous years in your schedule.
In addition, when drawing up a schedule, you will have to take into account the wishes of other employees, the order of vacations in the previous year, the intensity of the labor process during the year, and the specifics of the organization’s activities. We will have to try to ensure that neither the interests of employees nor the interests of the employer are infringed. To avoid disputes, you can prescribe the procedure for granting vacations in a local regulation and familiarize employees with it.
After drawing up, the schedule is signed by the head of the personnel service and approved by the head of the organization or an authorized person (signed). If there is a trade union at the enterprise, then the schedule must be agreed upon with it. Despite the absence of an obligation to familiarize employees with the approved schedule against their signature, this must be done.
We repeat that all these activities must be completed no later than 2 weeks before the start of the new calendar year.
Let us remind you that in accordance with Art. 693 of the List of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods, approved by Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558, the vacation schedule must be stored in the organization for 1 year.
If the employer offers to go on leave without pay
If an employer forcibly forces an employee to go on leave without pay (without paying wages), this is also a gross violation of Article 128 of the Labor Code of the Russian Federation. The company's management must pay the citizen's wages in full.
ATTENTION !!! In order to prove this fact, the employee must document the violation and provide additional evidence in court or the labor inspectorate. But the employer also has legal grounds to leave an employee without paying wages, for example, if the company has gone bankrupt and there are official documents confirming the circumstance.
How to receive monetary compensation in exchange for vacation
Some Russian citizens can replace their vacation with monetary compensation . However, this function is available only to those people whose vacation exceeds 28 days. Typically, teachers, teachers, law enforcement officers, security officials, etc. are on vacation for such a long time.
There are cases when a citizen under a contract has the right to leave once a year for 50 days . He can compensate for the 22 extra days by exchanging them for money. The employee must rest for 28 mandatory days.
Anyone can receive monetary compensation only if they are planning to quit. If an employee leaves work before vacation, the employer is obliged to compensate him for all 28 days.
If the vacation schedule has not been drawn up
If for any reason an employee does not suit the schedule established by the company’s management, then he can directly contact the employer and ask for a transfer to another day. To transfer, management must draw up a separate order, which requires indicating the number of days, the amount of funds intended for payment of vacation benefits, as well as the amount of retained wages.
But there are situations when management refuses to reschedule an employee’s vacation. This action may be completely legal if it meets the criteria prescribed in the Labor Code of the Russian Federation. It should be noted that the schedule is set by the employer based on labor reserves; deviations can lead to disruptions in the production process. It is quite difficult for an employee to leave outside the vacation schedule; organizations are inspected by the labor inspectorate regarding these violations.
Possibility of transferring vacation
– granting an employee leave in the current working year may adversely affect the normal course of work of the organization;
– the employee agreed to postpone the vacation to the next working year.
The employee himself can apply to reschedule the vacation to another date, including next year. If the employer does not object, an order should be issued for such a transfer and changes should be made to the vacation schedule.
Leave transferred at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.
By virtue of Part 1 of Art. 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts, one of which must be at least 14 calendar days. The question arises: how many such parts should there be in the next working year if the vacation was completely transferred to this year?
From the provisions of Art. 125 of the Labor Code of the Russian Federation, regardless of how many vacation days the employee uses during the year, we can conclude that one part of the vacation must be at least 2 weeks continuously, and the rest of the vacation time for both years can be divided into parts by agreement between the employee and the employer.
The employer must take into account unused days of annual paid leave for previous periods when drawing up each new vacation schedule.
A hired person cannot refuse to rest at all, but he is quite capable of transferring vacation from one period to another.
When transferring, it is important to consider the following aspects:
- Changing the time should not negatively affect other employees and their plans, that is, you will have to adapt to an existing schedule and look for free periods or change with someone.
- The management of the organization can either completely refuse the transfer or offer their own options.
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In any case, changing the previously scheduled time will only be possible with the agreement of all parties.
The transfer is initiated by the employee using an application submitted to the director of the organization. If the decision is positive, an order is issued to replace one period with another. Based on this, personnel employees make changes to the priority schedule and the employee’s personal card.
Forced leave at your own expense
Forcing an employee to take leave at his own expense is a fairly common occurrence. The company's management deliberately takes such risks, trying to shift debt obligations and other problems directly to the staff. In this situation, the employer offers employees to forcibly go on administrative leave without paying wages and vacation pay.
ATTENTION !!! If such a situation arises, the employee must appeal to a higher court. This type of labor dispute is resolved exclusively in court.
An administrative inspection is also scheduled, which will be carried out at the company’s office. The employer awaits the procedure for seizing documents and if the results prove a violation of the rules of Article 128 of the Labor Code of the Russian Federation, then the management will face administrative punishment provided for in Art. 5.27 Code of Administrative Offenses of the Russian Federation.
The essence of paid annual leave
The paid rest days provided every year are a period when the employee does not work, but retains his place of work and average salary.
The duration of the vacation must be at least twenty-eight days. This is enshrined in Article 115 of the Russian Labor Code. The rest schedule for employees is drawn up fourteen days before the end of the current year for the next annual working period. The head of the organization is obliged to familiarize the staff with the drawn up plan against signature.
When drawing up a schedule, the employer is not obliged to take into account the wishes of employees about the time they go on vacation (whether this or that team member wants to rest in winter or summer).
Exceptions are made only for certain categories of workers (parents with three or more children, women with children under fourteen years old, disabled people, etc.). A complete list of such employees is enshrined in the articles of the Labor Code of the Russian Federation (Chapter 19. LEAVES).
Before sending a member of the workforce on vacation, the head of the enterprise is obliged to notify the employee in writing two weeks before the start of the rest period.
In addition to the written notice, the employer must draw up an order, which is also read against signature. Three calendar days before the start of the vacation, the organization’s accounting department is required to pay the employee vacation pay.
Even if the employer has not fulfilled the obligation to draw up a vacation schedule in a timely manner, he must provide employees with rest days.
Can an employer force you to take leave without pay?
Often in practice there are cases when, due to financial difficulties, an employer cannot pay employees wages. Failure to pay wages threatens the employer with fines and other liability, so in such a situation, it is beneficial for him to send employees on unpaid leave. This is what he is trying to do by asking the employee to write a statement “at his own expense.”
Such actions by the employer are unlawful and extremely disadvantageous for the employee. So, for example, if wages are delayed, the employee has the right to suspend his work, but at the same time expect to retain his average earnings for the entire period of forced absence.
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Is it possible to take a vacation from Monday if it is scheduled on a day off?
Theoretically, an employee can be assigned leave starting from a day off. But, since weekends are included in the number of vacation days, this may be disadvantageous for the employee, because the number of rest days for him may be reduced.
At the same time, assigning leave from a day off is not a violation of the law on the part of the employer. Therefore, if you want to go on vacation on Monday, the employee needs to contact the employer with a request to postpone the vacation date to the first working day following the day off.
Sending an employee on compulsory leave
The law allows for the possibility of changing vacation time or dividing it into parts. In this case, one part of the vacation must be provided for no less than 14 days. If an employee wants to change the rest time, he can agree with management or exchange the periods specified in the schedule with another employee. Also, a member of the workforce has the right not to take vacation during the year.
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But the employee does not have the right not to go on vacation during a two-year period, since according to labor legislation, rest days must be used in full within a year after the end of the previous annual working period.
But the employer does not have the right to force employees to go on vacation at their own expense, even if a member of the workforce is part of a group of employees who have the right to take days off without pay at any time.
If an employer violates this requirement, a fine may be imposed on him, the amount of which is determined by the norms of administrative legislation and depends on the person at fault and the number of similar violations.
If an employee refuses to sign a vacation order or a corresponding notice, the employer must draw up a statement in the presence of two witnesses about the refusal of a member of the workforce to sign the document.
In this case, a disciplinary penalty may be imposed on the employee for violation of labor discipline.
An employer has the right to force an employee to go on vacation only in exceptional cases. In this case, the employee must either stay on schedule or not rest for a year from the beginning of the new working period after the previous vacation.
