Unpaid leave. Native open spaces

Legislation under administrative leave means the right of an employee or employee to extra rest without payment. As a rule, citizens use this norm in case of emergency to resolve urgent household issues, or in the case when they need to take care of their own health or help loved ones.

But there are times when it becomes necessary to provide administrative leave at the initiative of the employer. It should be noted right away that not a single law gives the employer the right to arbitrarily decide and send workers to unpaid leave.

Remember, if the employer forcibly tries to send you on administrative unpaid leave, it is illegal and the employer may be held administratively liable for this.

Now about the cases when such a need may arise. Lack of orders, a decline in production, a decrease in the number of customers, "stagnation" in the market, all these become the reasons that can lead to a reduction in the number. But experienced managers know that in most cases these are seasonal phenomena, and therefore sending employees for this period on administrative leave at their own expense will save costs and save the team in the future.

Therefore, the employer can only offer his subordinates, as an option, such a way out of the current situation, thus saving jobs.

What the employee gains and loses

According to the Labor Code, the duration of administrative leave without pay is established by agreement of the parties to the employment relationship. But there are some points here that should not be forgotten.

Granting administrative leave will give the employee more free time to deal with various urgent matters. You can even get another job during this period. Just remember, if the duration of such leave is more than 14 calendar days, your main leave from work will be shifted for the entire period that exceeds these days.

If during this period you fall ill, you will not be able to count on sick leave payment. The same applies to retirement experience. For the entire period of being on underpaid vacation, you will not be credited with retirement experience.

Remember, administrative leave for more than 14 calendar days can negatively affect your retirement record and other social guarantees.

Possible alternatives

After weighing all the pros, as well as some of the cons, many are trying to find an alternative before writing an application for administrative leave.

The Labor Code provides for two options for solving the problem - this is the introduction of downtime at the enterprise, or the introduction of part-time work for a certain period (no more than six months).

But before introducing any of this, the employer is obliged to inform the employee in advance (two months in advance) about the change in the labor regime, and also to coordinate these issues with the trade union organization.

Remember, during downtime, the employee is paid at least 2/3 of his salary (tariff rate), and during part-time work - for the hours actually worked.

If the employee does not agree to such working conditions and does not accept the alternatives offered by the employer, he may be dismissed from the initiative of the latter. The established guarantees, as well as compensation and other payments in this case, remain with him.

It also happens that while relaxing with your loved one, you want to drown yourself! After all, you thought it was love - not to part, either in sorrow or in joy, and even more so on vacation. But…

Disadvantages of joint vacations

Disadvantage # 1. About entertainment. As it turned out, having gone to one place, you had completely opposite plans! Your concept of "romance" includes stormy dances in a nightclub, and his - diving from a pier in the middle of the night. Your dreams are to visit all the palaces of the country, and try the local cuisine in it. As a result, you are both dissatisfied with the time spent ...

Disadvantage # 2. Your habits. You did not notice at all the wild laziness of your lover when he ordered food at home. And here, for fresh vegetables and fruits, you have to go on a hike to the nearest market about two kilometers. And he refuses to the last! And in the morning you don't push him at all, awakening is only for dinner.

Disadvantage # 3. Budget! He, of course, thinks that you spend too much on various souvenirs. And you, on the contrary, are sure that you can save on the next glass of beer. The result is your constant fears that your money will run out, and his grumbling about your stinginess.

What to do?

The most important thing is to try to negotiate. And, despite your great love, both of you are independent individuals who have your own interests and hobbies. Therefore, there is nothing terrible if you disperse for a while. For example, you are both cycling fans, but for you a great walk - about ten kilometers, and for him - at least forty. Try to join two different groups! And then you can exchange new experiences. And one more plus - you will get bored and give an ocean of passion to each other!

Vacationer's Guide:

Discuss in advance what exactly you expect from the vacation. At least roughly to avoid unpleasant surprises and sudden loneliness.
Try to conclude a comic contract, where the inviolable rules will be: do not wake up your beloved when you feel the urge to spend the sunset, do not order more than half a kilo of ice cream for dinner, etc ...
The golden rule - if you want to get more pleasure from your vacation together - reduce the time. A week together is one, and a month is quite another.
Try to rationally resolve sudden quarrels - put a taboo on clarifying relationships and problems. This is a vacation, and rest is sacred. It also happens that conflicts do happen during the long-awaited owls

Unpaid leave is synonymous with administrative leave or self-paid leave. Such leave is governed by Art. 128 of the Labor Code of the Russian Federation.

The law spelled out only a few cases when vacation at one's own expense is granted for a certain number of days. This article also contains reasons that are valid a priori.
Such leave is given to an employee with his written application and if there is a valid reason. In addition to these 3 reasons, the question of the "degree of respect" will be decided by the employer himself.

There are also categories of workers who are granted unpaid leave, regardless of whether they have a reason. Upon written application of such employees, the employer is obliged to provide them with leave for a certain number of days.

Vacation "at your own expense" has its pros and cons. This must be taken into account. The positive aspects of such a vacation include:

Free time with the employee for his own affairs;
The opportunity to earn extra money;
The opportunity to relax and do your hobby;
During such a vacation, the place of work is retained;
The employee does not decrease the average earnings, which is necessary for calculating various benefits and payments, since this period is excluded from the calculation of the average earnings;
This period is included in the calculation of maternity benefits;
The employee does not lose the right to use tax deductions.

But vacation at your own expense has more negative sides. This:

Lack of earnings;
If an employee exceeds 14 calendar days a year with such leave, then the start date of his calendar year will be "shifted" by the number of days in excess. This is stated in Art. 121 of the Labor Code of the Russian Federation;
If an employee falls ill during such a vacation, then the sick leave will not be paid to him;
The time spent on such leave is not included in the insurance experience, which is necessary for calculating pensions. Since salaries are not paid for this period, contributions to the FIU are not made either. Consequently, the pension "does not grow."

Maximum term

The law does not specify the maximum period of unpaid leave. Its duration is limited by the employer's ability to release this employee for one time or another, and find him a substitute for this time.
But do not forget that in addition to the Labor Code of the Russian Federation, there are other Federal Laws that regulate the work of certain categories of workers.
So, for example, in part 15 of Art. 46 of the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service Russian Federation"And part 6 of Art. 21 of the Federal Law of 02.03.2007 No. 25-FZ "On municipal service in the Russian Federation" states that a civil or municipal employee can take a vacation at his own expense for no more than 1 year.

In Art. 128 of the Labor Code of the Russian Federation states that without explaining the reasons, the following categories of employees are entitled to administrative leave:

Participants and veterans of the Second World War - up to 35 days on the go;
Old age pensioners who continue to work - up to 14 days a year;
People with disabilities who work - up to 60 days a year;
Other employees who are provided for by the Federal Law and local acts.

In a collective agreement or in a local act for the enterprise, the employer can allocate more workers to whom he will be obliged to provide such leave without giving reasons. For example, women with children under 14 years old.
Also in Art. 128 of the Labor Code of the Russian Federation indicates 3 reasons that are valid, and in the presence of which the employer must give the employee 5 days of leave without pay. This:

Death of a close relative;
Own marriage registration;
Birth of a child.

Administrative leave, like the main one, in 2018 is measured in calendar days.

In Art. 128 of the Labor Code of the Russian Federation says that "vacation at their own expense" is provided to an employee at his written request. That is, the employer provides unpaid leave at the initiative of the employee, and its duration is achieved by agreement of the parties.
The agreement of the parties must be in writing, that is, it is enough to indicate the duration of the vacation in the application. For example, “I am asking you to grant me unpaid leave for a period of 7 calendar days for the reason….”.

Therefore, by agreement of the parties, the employee may be granted unpaid leave for more than 14 calendar days. But in Art. 121 of the Labor Code of the Russian Federation says that if the total unpaid leave of an employee during a working year exceeds 14 calendar days, then the start date of his working year is shifted by the number of such days. And the start date of the working year is necessary for the provision of annual leave and the calculation of vacation pay.

Unpaid leave initiated by the employer

In Art. 128 of the Labor Code of the Russian Federation says that vacation "at one's own expense" is possible only at the initiative of the employee and at his written request. Such leave is not possible at the initiative of the employer. An employer does not have the right to send his employee on administrative leave. This is a violation of labor laws.

However, in practice, everything is somewhat different. The employer can persuade the employee to write an application for such a vacation, motivating it by the fact that "the company has such a difficult financial situation, but we are not firing you!" This is called forced vacation.
Very often, unscrupulous employers hide behind such a simple "vacation". In Art. 157 of the Labor Code of the Russian Federation states that idle time due to the fault of the employer is paid in the amount of 2/3 of the average salary of this employee. And the administrative leave is not paid. That is, the employer saves his money.

If the employer insists and sends his employee on unpaid leave at the initiative of the employer, his actions can be regarded as a violation of labor laws.
Responsibility for such violations is provided for in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. To bring the employer to such responsibility, it is necessary to write a statement to the labor inspectorate at the employer's location, to the prosecutor's office or to the court. However, the employee is obliged to provide evidence of forced leave at the initiative of the employer.

As practice shows, it is almost impossible to bring an employer to justice on such grounds. It is possible to attract an employer only if there is evidence that the downtime at the enterprise is the fault of the management. That is, the management cannot provide its employees with work and sends them on "forced" leave.
The employer's fault includes:

Lack of funding;
Changes in market conditions;
Price changes;
Failure by counterparties to fulfill their obligations;
Other business risks for which the employer is responsible.

These grounds are listed in Art. 401 of the Civil Code of the Russian Federation. If there is no evidence that the employer has taken all measures to prevent downtime, it will be almost impossible to find him guilty. Measures include, for example, sending letters to a counterparty asking them to pay bills.

Unpaid leave order

In Art. 128 of the Labor Code of the Russian Federation states that administrative leave is granted upon a written application from an employee. It is written in the name of the employer. It should contain the following information:

In the upper right corner, you must indicate information about the employer and the applicant:
- The position of the employer's representative who has the right to sign such statements, and his full name. For instance: " to CEO LLC "AKBARS" Vasnetsov II ";
- Position and name of the applicant. For example: "From the accountant Petrova P.P.";
Further in the center, you must write the word "Application";
Then the "body" of the statement. Here you need to indicate the main text, that is, a request to provide "leave without pay". It is imperative to indicate the number of calendar days. For example, “for 17 calendar days from 15.10.2018 to 02.11.2018. It is imperative to indicate the reason. For example, "in connection with their own marriage." If an employee is entitled to such leave without giving reasons, then there is no need to write this.
Then the date of submission of the application and the signature of the employee himself.

The application must be endorsed by the head of the structural unit where such an employee works. His signature suggests that. That he agrees with the period of absence of this employee, and there is someone to replace him.
Then the employer himself signs the application. After that, the application is submitted to the personnel department, where the order is prepared. If the enterprises are large, and the workflow is also large, then the application must be written in 2 copies, and submitted to the secretary. The application is registered properly, and the number of the incoming document and the date of registration of the application are put on one copy that remains with the employee.

The order is prepared on the official letterhead of the employer. If there is no such form, then you must indicate all information about the employer:

Its full name in accordance with the constituent documents, indicating the organizational and legal form;
Legal address and location address, if different;
Contact details.

Then comes the "body" of the order, in which it is necessary to indicate:

Name and position of the applicant;
Leave period;
The reason for this leave.

The employee must put his signature on the order. This indicates that he is familiar with the order. Precisely familiarized, but disagree. If the employee does not agree, then he put his signature and mark “disagree”.

For orders for any leave there is a unified form No. T-6 and T-6a. Every employer must adhere to this form.

Who is entitled to vacation without fail

The current legislative norms established a list of special categories of citizens who must be granted administrative leave without fail, regardless of the wishes and opinions of the employer. These categories include the following individuals:

Participants of the Great Patriotic War. These persons are entitled to annual administrative leave, the maximum duration of which may be 35 calendar days.
Employees who have already reached the retirement age established in the country, but still continue their professional activity- up to 14 days of rest annually.
Workers who are close relatives of military personnel who died in the line of duty or died from their wounds - 4 administrative days each year.
Employees who have one or another group of disabilities - up to 60 days of rest annually.
Employees in whose life special circumstances have arisen, listed in the official list. Such circumstances include the wedding of a subordinate, the birth of a child with him, as well as the death of a close relative - up to 5 days of rest for each of the above events. It should be noted that the existence of such a circumstance must be proven by the employee in an official manner. To do this, he will need to provide his employer with the appropriate documentary evidence.
Employees who are simultaneously studying at the full-time faculty of an accredited educational institution. The exact length of administrative rest will depend on the immediate basis. For example, an employee may be given up to 160 days of rest to prepare for final exams, up to 15 days to pass midterm exams, etc.

It should be noted that the above list of special categories of staff is not exhaustive. Additional privileges for individuals can be set independently by the employer. For example, at a plant for a special department of employees who constantly deal with hazardous or harmful working conditions, local acts may establish additional days of administrative rest. Often, such information is enshrined in documents such as a collective agreement, individual provisions and other local acts.

According to the norms of the Labor Code of the Russian Federation, any woman before going on maternity leave has the right to receive annual paid leave.

At the same time, an employee in a state of pregnancy has the right to provide such rest, regardless of the length of service and the length of time worked with this employer. However, this provision of legislation is not always implemented in practice, and the reason for this, as a rule, is the legal ignorance of the employee.

○ Up to what time the maternity leave is paid:

As I said above, the Labor Code of Russia contains an unambiguous norm in interpretation: a woman, before going on maternity leave, can apply for the provision of annual paid leave... At the same time, the length of service, namely the length of time worked for a given employer, does not matter.

In other words, pregnant women are entitled to leave before the decree, regardless of whether the employer wants it or not, and also whether the lady has worked in the organization for more than 6 months.

It should be noted that the date of commencement of the sick leave for pregnancy and childbirth will be considered the date of issue on maternity leave. The linking of annual paid leave to the start of parental leave will be incorrect here.

○ What is Leave in Advance?

So, we have established that pregnant a woman has the right to claim leave regardless of the time she has worked. This means that before going on maternity leave, a maximum length of leave can be granted - from 28 days in general, and up to 56 days if the position of the employee provides for an increased duration of the annual paid leave.

It will also not matter that the employee has already taken leave for the current year. In this case, the woman has the right to demand the so-called leave in advance - that is, the annual leave, which will be counted in subsequent periods after the end of the decree.

When applying for a vacation in advance, you should consider the following features:

If you receive a vacation in advance and in full, then after you leave the decree, you can apply for an annual paid vacation only with the onset of the next working year.
If, after the end of parental leave, you decide to end your employment relationship with your employer, you may be withheld or charged compensation for the previously paid vacation pay.

○ How many days is the leave before the decree? How to calculate?

There are several options for the length of vacation that can be granted before going on maternity leave. It should be borne in mind that, at will and by mutual agreement with the employer, a woman can apply for any of the options.

Vacation in advance, of any length. The maximum period of such a complete vacation is 28 days, or more if the conditions and nature of work imply an extended vacation.
Leave for the hours worked prior to the start of parental leave. I note that the period of sick leave for pregnancy and childbirth should also be taken into account as hours worked.

The settlement year starts from the date of the beginning of the employment relationship, that is, from the date you entered the job. But eo only general rule, a more detailed and accurate calculation of the duration of annual leave for hours worked can be requested from the personnel department of the organization.

○ Should I take leave before decree? Pros and cons.

Considering the question of whether it is worth taking a vacation before maternity leave, I recommend taking into account the following.

Thus, labor legislation provides for the obligation to grant a woman, at her request, leave, either before going on maternity leave, or after it ends. If you take your vacation in advance, you will not have to apply for a vacation after the end of the decree.

Situations are different, and many women prefer to leave part of their vacation "in reserve" in order to have a safety net in case of closure. kindergarten, child's illness and other unforeseen situations.

On the other hand, a vacation before maternity leave will allow you to spend more time in the fresh air, get more pleasant emotions, also with an advantage in the form of vacation pay and payments relying on vacation.

Thus, the decision on the need for leave before the decree should be made independently, taking into account the state of health, well-being, material benefits.

○ Step-by-step instructions: How to take maternity leave?

In order to issue an annual paid vacation before going on maternity leave, I can recommend the following sequence of actions.

Decide for yourself how long you want the vacation, taking into account the specifics of providing the vacation in advance.
Try to agree with the head of the organization or immediate supervisor on the length of your vacation and the date of its start. Keep in mind that the manager also needs to redistribute the workload on employees, transfer your authority to another employee. If the manager protests against your decision to leave, remind him of the content of Article 260 of the Labor Code of the Russian Federation and mention your right to apply to the State Labor Inspectorate if the employer does not comply with the guarantees of labor legislation.
Write a vacation application in accordance with the rules in force in the organization. Let me remind you that it is advisable to write a statement at least 14 days before the start date of your vacation.
Get a vacation order and vacation pay.

○ The approximate content of a vacation application before decree.

The sample application for leave before the decree is not much different from the standard one for the provision of annual paid leave. The text of the application must contain:

The name of the head of the organization.
Information about the applicant, his position.
Request for annual paid leave.
Length of vacation in calendar days.
Request for payment of material assistance and other due payments.
Reference to article 260 of the Labor Code of the Russian Federation.
Date and signature of the applicant.

According to the standard procedure, the application must be endorsed by the head of the organization, on the basis of which the personnel department prepares a vacation order, and the accounting department calculates the due payments.

○ Answers to frequently asked questions of visitors:

✔ Is additional leave for pregnant women before maternity leave?

If your labor duties and working conditions provide for the provision of additional leave along with the main one, lasting 28 days, then you have the right to use all the days of additional leave before going on maternity leave.

Please note that it is prohibited by labor law to replace additional leave with monetary compensation for non-use.