We change vacation for money - payment of monetary compensation for unused vacation

Consider in the article when it becomes possible to receive monetary compensation for unused vacation. In practice, it sometimes happens that due to circumstances, the employer cannot release the employee on regular leave. Can an employer withhold an employee by preventing him from exercising his full right to rest?

According to the current legislation, the transfer of vacation is possible only in the case of exceptional circumstances. It turns out that the employee has the right to work only if the employer insists that when the employee leaves, the normal functioning of the organization (or its division) will be impossible. This is done only with the consent of the employee.

It should be noted that if an agreement is reached between the employee and the employer regarding the replacement of the next paid vacation with monetary compensation, the employee will have to use the rest time, lasting 28 days (calendar) in the next 12 months. That is, vacation for the worked calendar year must be used by each employee. It is only possible to shift it for some time, and no later than a year.

The law strictly prohibits employers from providing paid leave if the employee, due to circumstances, was forced to work without leave for 2 years in a row.

Leave must be provided for each year if the employee is under 18 years of age, and employees who are employed in work with dangerous or harmful conditions. This requirement of legislators is connected with concern for the preservation of the physical and mental health of the working population. Another category of workers for whom vacation compensation is strictly prohibited are pregnant women, whose health is under special state control.

Thus, based on the norms of the current one, the right to use the next vacation should almost always be exercised. However, as practice shows, some employees still accumulate days of unused vacation. In the event that the leave was indeed not granted on time, the employer, in accordance with the law, must pay compensation to him.

Monetary compensation for the part of the vacation that exceeds the number of vacation days is paid by the employer without fail if the employee submits a corresponding written application. In addition, monetary compensation in the event of unused vacation must be paid if.

The amount of compensation for an employee's unused vacation is calculated based on the amount or hourly earnings for the billing period and the number of days or hours that the employee was supposed to use as vacation, but due to circumstances could not take time off.

How to get cash compensation for unused vacation

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An employee's annual paid leave can be replaced with monetary compensation only in two cases - if the employee being dismissed has unused vacations or if it is a question of replacing part of the vacation with a monetary payment exceeding 28 calendar days (). Let's consider both of these situations in more detail.

Compensation for unused vacation upon dismissal

Upon dismissal, the employee is paid monetary compensation for all unused vacations (). It is worth noting that even though the right to use the vacation for the first year arises for the employee after six months of his continuous work, an employee who has worked in the company for less than six months is still entitled to compensation for unused vacation (,).

The employer must pay the amount due to the employee on the day of dismissal, and if the employee did not work on that day, then no later than the next day after they present the corresponding request ().

Determine the number of vacation days due to the employee, taking into account his length of service. At the same time, not only employees who have worked a full working year, but also employees have the right to full leave:

  • who have worked for this employer for at least 11 months, subject to offset in the period of work giving the right to leave;
  • who have worked from 5.5 to 11 months, if they leave due to the liquidation of an enterprise or institution or its individual parts, reduction in staff or work, as well as reorganization or temporary suspension of work, etc. ().

In all other cases, employees are entitled to leave proportional to the length of service worked. For example, if an employee has 28 calendar days of annual paid leave, for each month of service, he is entitled to 2.33 calendar days of leave (28 days: 12 months).

Thus, the number of vacation days due to an employee can be determined by the following formula:

O \u003d E: 12 x C, where
O - the number of vacation days due to the employee;
E - the total duration of the vacation;
C - the number of months of vacation experience.

Subtract from the number of days of vacation due to the employee the days already used by him. At the same time, often the number of vacation days for which compensation is due upon dismissal turns out to be fractional. Rounding them is not provided for by law, but the Ministry of Health and Social Development of Russia explained that the employer can round the resulting number, however, not according to the rules of arithmetic, but exclusively in favor of the employee ().

If an employee has completed a full 12-month billing period:

SZ \u003d (Z: 12: 29.3) x D, where:

29.3 - the average monthly number of calendar days (a constant indicator in accordance with);

If an employee did not fully work for one or more months of the billing period:

SZ \u003d (Z: (29.3 x M + H)) x KD, where:
SZ - average earnings for vacation days;
Z - wages actually accrued for the billing period;
M - the number of full calendar months (when the employee has worked all working days or shifts);
N - the number of calendar days in incomplete calendar months;
D - the number of calendar days of vacation.

In this case, the indicator H for each month must be calculated separately:

H \u003d 29.3: KD x KO, where:
N - the number of calendar days in an incomplete calendar month;
KD - the number of calendar days in a month;
KO - the number of calendar days worked in this month.

The results obtained for the H indicator for each incomplete month should then be summed up and the resulting total should be substituted into the formula for calculating average earnings.

Recall that the average daily earnings are calculated for the last 12 calendar months (,). In this case, time is excluded from the billing period, as well as amounts accrued during this time, if:

  • the employee retained the average salary in accordance with the law (for example, the annual basic paid leave), with the exception of the breaks provided for by the Labor Code of the Russian Federation for feeding the child;
  • the employee received temporary disability benefits or maternity benefits;
  • the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and the employee;
  • the employee did not participate in the strike, but due to this strike he was unable to perform his work;
  • the employee was provided with additional paid days off to care for disabled children and those disabled since childhood;
  • the employee in other cases was released from work with full or partial salary or without payment in accordance with the law (clause 5 of the Regulations on the Peculiarities of the Procedure for Calculating the Average Wage).

ATTENTION!

Persons who have concluded an employment contract for up to two months () and seasonal workers () are entitled to leave not in calendar days, but in working days (at the rate of two working days per month of work). In this regard, the average daily earnings of such employees should be calculated using the following formula:

SZ \u003d (Z: R6) x D, where:
SZ - average earnings for vacation days;
Z - actually accrued wages;
P6 - the number of working days according to the calendar of the 6-day working week, falling on the hours worked;
D - the number of working days of vacation.

Multiply the calculated average daily earnings by the number of unused vacation days. This will be the amount of compensation due to the employee.

At the same time, the resigning employee has the right to prefer the vacation itself to compensation. In this case, he must submit to the employer a written application for the provision of unused leave with subsequent dismissal - only employees who are dismissed for guilty actions () cannot use this right. In this case, the last day of vacation is considered the day of dismissal, and the last day of work is the day preceding the first day of vacation (). This is necessary so that the employer can properly fulfill his obligation to formalize the dismissal and pay the dismissed employee.

Compensation for part of annual paid leave

Part of the annual paid leave exceeding 28 calendar days can be replaced by monetary compensation (). This is possible when an employee is entitled to extended or additional leave ( , ).

In addition, when summing up annual paid holidays or transferring holidays to the next working year, compensation can be received for the part of each annual paid leave that exceeds 28 calendar days, or any number of days from this part. If an employee who is entitled to an annual basic paid 28-day vacation did not use it last year, he will still not be able to receive compensation in the current year, regardless of how many days of vacation he has accumulated. This is due to the fact that, as mentioned above, only those employees who are granted extended or additional leave can use the right to replace part of the vacation with a cash payment.

To learn how to correctly determine the period for which the last 12 calendar months of work of an employee claiming monetary compensation instead of vacation fall, see the material "Determination of the settlement period when calculating compensation for unused vacation" in "Encyclopedias of solutions. Labor relations, personnel"

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However, there are a number of nuances that are important to keep in mind.

First, in order to receive compensation, the employee must write a written application. The employer is not entitled to replace part of the vacation with compensation on his own initiative.

Second, the applicant must not be in any of the following categories:

  • pregnant women;
  • workers under the age of 18;
  • workers employed in work with harmful and (or) dangerous working conditions (if the question concerns).

These employees are prohibited from paying compensation, even at their request. But here, too, there is an exception. It concerns workers employed in jobs with harmful and (or) dangerous working conditions. Part of their annual additional paid leave, which exceeds seven calendar days, on the basis of an industry (inter-sectoral) agreement, collective agreements, as well as the written consent of the employee, drawn up in the form of an additional agreement to the employment contract, can be replaced by a separately established monetary compensation ().

However, even if all of the above conditions are met, providing compensation for part of the vacation is the right, but not the obligation of the employer. Therefore, he has the right to refuse the employee his request.

If the management nevertheless decided to satisfy the employee’s request, the replacement of vacation with monetary compensation must be issued in the form of an order from the employer, issued in free form. The main thing is to reflect for the vacation in which particular working year compensation is provided. At the same time, the average earnings for the payment of compensation are calculated in the same way as for compensation for unused vacation.

Related Documents:

  • Decree of the Government of the Russian Federation of December 24, 2007 No. 922 ""
  • , approved NCT USSR April 30, 1930 No. 169

Cash compensation for unused vacation is a guarantee provided for in Art. 126, 127 of the Labor Code of the Russian Federation. How such compensation is calculated, whether it is always paid, read in our article.

The concept of compensation for unused vacation under the Labor Code of the Russian Federation in 2018-2019

Cash compensation vacation days in accordance with Art. 126, 127 of the Labor Code of the Russian Federation are replaced in 2 cases:

  • if the employee wishes, if there are no contradictions with labor legislation;
  • layoffs.

Contradictions may arise when an employee demands payment of compensation for unused vacation - 2018-2019, and such vacation is 28 days or more, but it is increased due to additional allowance for harmful, dangerous, special nature of work.

NOTE! Minors, as well as pregnant women, cannot claim compensation unless they quit. Due to the special protection of this category by the legislator, they must necessarily take advantage of the annual rest.

Additional allowance days granted by law for harmfulness, danger, the special nature of working conditions, are not replaced by money (part 3 of article 126 of the Labor Code of the Russian Federation). But if they are provided by the local act of the enterprise in excess of the days guaranteed by the legislator, their replacement with money is possible.

The second meaning of the concept of compensation for unused vacation in 2018-2019, as noted above, is the payment-compensation made upon dismissal. In this case, according to the Labor Code of the Russian Federation, payment is made as compensation for unused vacation:

  • 28 days of annual rest (or 56 for 2 years if last year was not used);
  • all non-holiday days of legal additional admission;
  • days provided by the employer on its own initiative (for example, for years of service in the company).

How an employee can exercise his right to leave (Article 127 of the Labor Code of the Russian Federation)

The employee according to Art. 127 of the Labor Code of the Russian Federation can:

  1. Get paid for vacation days that should have been taken but not taken. By the specified norm, the employee is provided with rest after dismissal from this place of work (determination of the Constitutional Court of the Russian Federation of July 18, 2017 No. 1553-O).
  2. Go on vacation followed by dismissal. The employee can use this right if there is an appropriate agreement with the employer in cases where he did not commit guilty acts that served as the basis for dismissal.

In the second case, leave is paid to the person leaving according to the general rule - according to the average daily earnings. The deadline for transferring payment in accordance with paragraph 1 of the letter of Rostrud dated December 24, 2007 No. 5277-6-1 is the last working day of the former employee. On the same day, a full salary calculation is made with him, a work book is issued.

Despite the actual termination of labor relations on the last working day, the employee is considered dismissed at the end of the vacation (part 2 of article 127 of the Labor Code of the Russian Federation).

Sample order for compensation for unused additional and main vacation

In order to pay compensation in return for providing leave, a written application must be received from the employee (part 1 of article 126 of the Labor Code of the Russian Federation).

Based on the application, an order is issued, which contains:

  • the date of its publication;
  • Full name and position of the employee whose vacation is replaced by compensation;
  • additional allowance period that will not be used;
  • link to Art. 126 of the Labor Code of the Russian Federation and the application of the employee (the latter must have a registration number and date of compilation);
  • signatures of the manager and employee.

We recall once again that, by virtue of Art. 126 of the Labor Code of the Russian Federation, an employee is entitled to compensation for unused basic and additional leave only for days provided in excess of 28 or 35 days.

When an employee is dismissed, the specified order is not issued, but a note-calculation is drawn up in the form of T-61, in which unpaid days and the amount paid in connection with this are registered.

How to get compensation for unused last year's vacation

By virtue of Art. 124, 125 of the Labor Code of the Russian Federation, the employee has the opportunity to transfer the annual rest to another period, in connection with which the vacation schedule changes.

Labor legislation allows such a transfer within 2 years after the end of the working year.

For example, if an employee began working at this enterprise on 06/01/2017, leave for the first working year must be granted to him and, if necessary, can be transferred from 12/01/2017 to 06/01/2019. It is no longer possible to transfer further, the ban on this is established by Part 4 of Art. 124 of the Labor Code of the Russian Federation.

Starting from 06/01/2018, this employee has the right to leave for the second working year, and if he works without going on an annual vacation, vacation days accumulate.

By agreement with the employer, the employee can add the old vacation to the new one and take 56 days off at once. It is impossible to replace vacation for the previous working year with money due to Part 2 of Art. 126 of the Labor Code of the Russian Federation.

However, the employee may receive compensation for unused additional leave, including for the first working year.

To do this, he needs to write an appropriate application addressed to the head. At the same time, the latter can either satisfy or refuse to replace vacation with compensation, because satisfying such a statement is not the employer's obligation.

Is it possible to take compensation for unused vacation upon dismissal after the end of maternity leave

How to receive compensation for unused vacation in general cases, it is clear from the provisions of Ch. 19 of the Labor Code of the Russian Federation.

Whether it is possible to take compensation for unused vacation to a woman who was on parental leave, at the end of which she decided to quit, is stated in the rules, approved. NCT USSR 04/30/1930 No. 169 (hereinafter referred to as Rules No. 169), as well as explanations for their application.

So let's look at the following options:

  1. If an employee used all the vacation days accumulated before going on maternity leave (M&M), upon dismissal, she is paid compensation, the length of service for which has accumulated over the period of sick leave (140 days), as well as for the period of annual leave taken before him, - in proportion vacation days.
  2. If the accumulated days of annual leave before going on maternity leave were not used, then upon dismissal, the woman receives full compensation (it is necessary to calculate the unused leave due to her for the years worked, and then add the leave for the sick leave period according to BiR).

These conclusions are drawn on the basis of the provisions of Art. 121 of the Labor Code of the Russian Federation:

  • days of annual rest taken before going on maternity leave, the BiR period (140 or 196 days), are included in the length of leave, for non-use of which the woman is entitled to compensation;
  • the period of caring for a child up to 1.5 or 3 years is not included in the vacation experience.

Is compensation for unused vacation given to a part-time worker?

Is compensation for unused vacation paid to a part-time worker? The answer to this question is unambiguously affirmative: yes, such an employee is entitled to the payment provided for in Part 1 of Art. 127 of the Labor Code of the Russian Federation.

The basis for this assertion is:

  • Art. 286 of the Labor Code of the Russian Federation;
  • paragraph 31 of regulation No. 169.

In the situation with part-time work, attention is drawn to the fact that the part-time worker combines vacations at the main and additional places of work into one in accordance with Art. 286 of the Labor Code of the Russian Federation. If this is an internal part-time job, then such an association occurs even at the stage of approval of the vacation schedule. If the part-time worker is external, then at the additional place of work he writes a statement on the basis of which the employer provides annual rest during the period coinciding with the rest at the main place of work.

Thus, when an internal part-time worker is dismissed from both positions at once, he is entitled to 2 monetary compensations for unused vacation.

How Compensation is Calculated: Formula

The calculation of monetary compensation for unused vacation is made according to a simple formula: the number of days not taken off is multiplied by the average daily earnings.

This should take into account:

  1. With a guaranteed vacation of 28 days, no more, it is considered that for each month the employee is entitled to 2.33 days of vacation (letter of Rostrud dated October 31, 2008 No. 5921-TZ).
    It is not necessary to round the received number of days, but if the employer wants to do this, then rounding occurs in favor of the employee, always upwards (letter of the Ministry of Health and Social Development dated 07.12.2005 No. 4334-17).
  2. Whether compensation for unused vacation is due to employees with a short length of service is indicated in paragraph 28 of Regulation No. 168. Yes, the specified payment is made, but in proportion to the length of service.
    If the organization is liquidated or the staff is reduced, or the employee enters the military service, then, despite the short length of service (from 5.5 to 11 months), he is paid full compensation.
  3. The average daily earnings are determined by the formula:
    SDZ = ∑ of all income / 12 / 29.3.

Income includes all payments made by the employer in the past 12 months.

You can read more about calculating compensation here: How leave is calculated upon dismissal. On the calculation of personal income tax from compensation - in the article Is compensation for unused vacation subject to personal income tax?

When is full compensation paid, and when is partial compensation paid?

It was mentioned above that in order to receive full compensation, the employee must:

  • have a work experience of 11 months;
  • do not go on vacation at the expense of the worked period.

Consider a situation where these conditions are not met.

NOTE! The requirement for mandatory working out of 11 months is established only for calculating compensation. An employee can go on a paid full vacation after six months of work at this enterprise (part 2 of article 122 of the Labor Code of the Russian Federation).

Situation 1

Stepanov A. B. worked for 7 months and resigned at will. What is his compensation?

The formula given in the article is used here: 2.33 × 7 = 16.31. Stepanov is entitled to the compensation received as a result of multiplication: 16.31 × SDZ.

Situation 2

Stepanov A. B. worked at the enterprise for six months, went on a full vacation. After returning from vacation, he worked for another 1 month and quit. Is he entitled to compensation?

According to the Labor Code of the Russian Federation, unused days of annual rest in kind are reimbursed in the form of monetary compensation upon dismissal of an employee.

Is it possible to receive compensation for unused vacation not only upon dismissal, but also in a long-term employment relationship, is also indicated in the Labor Code of the Russian Federation: this is possible if there are days of additional leave not provided for by the legislator, but guaranteed by local acts.

An employee who does not wish to use such additional days has the right to replace them with compensation. All categories of workers have this right.

The calculation of compensation occurs according to a formula similar to the calculation of vacation pay.

Each employee is entitled to an annual paid leave of 28 calendar days. He has such a right after six months of work with one employer.
Vacation is provided according to the schedule, which must be approved no later than December 15 of the current year for the next year. The right to use does not depend on the calendar year, but on the working year, that is, from the moment the employee was hired. This is stated in the letter of Rostrud dated December 18, 2012 No. 1519-6-1.

If he was hired on November 15, 2017, then he has the right to use full leave six months later, that is, from May 15, 2018. In this case, the employee can "walk" 28 calendar days, but he will receive "Vacation" in proportion to the hours worked.
He will have the right to full leave and full “vacation pay” only after 11 months of work, that is, from 10/14/2018.

In addition to the main vacation, there is also an additional one. It is provided to certain categories of workers. For example:

  • employees of the Far North and territories that have a similar status;
  • workers working in hazardous working conditions;
  • workers with hazardous working conditions;
  • other categories of workers listed in Art. 116 of the Labor Code of the Russian Federation.

Both basic and additional holidays are paid. The amount of vacation pay depends on the average earnings of the employee for the last year. According to Art. 139 of the Labor Code of the Russian Federation, to calculate the average wage, all labor payments to the employee for the last calendar year are taken into account.

The employee has the right to receive compensation for unused vacation only in two cases:

  • upon dismissal for all unused vacation days;
  • without dismissal for vacation days exceeding 28 calendar days. This is stated in Art. 127 of the Labor Code of the Russian Federation.

The amount of compensation for unused vacation depends on the number of days and on the average earnings of the employee for the last year. The average salary of an employee for the year is calculated as the division of the actual salary for the year by 12 months and by a constant number of 29.3 - this is the average number of days in a month.

For example, an employee has 6 days of unused vacation in 2018. Over the past year, his total salary was 420,000 rubles.
The average daily salary of this employee is (420,000 / 12) / 29.3 = 1,194.5 rubles per day
For 6 days of unused vacation, he will receive 1,194.5 * 6 = 7,167.2 rubles.

Is it possible to receive compensation for vacation and continue to work An employee can only receive compensation for unused additional vacation. To do this, he must write an application addressed to the employer or a person who is authorized by the employer to sign such applications.

The application is written in free form. If the company has developed an application form, then you must use it. The application must contain the following information:

  • In the upper right corner, you must specify information about the employer and the applicant:
    • the position of the representative of the employer who has the right to sign such applications, and his full name. For example: “To the General Director of Petarda LLC Silyanov K.P.”;<\li>
    • position and name of the applicant. For example: "From the programmer Uvarov M.E.";
  • Next, in the center, you need to write the word "Statement";
  • Then the "body" of the statement. Here you need to indicate the main text, that is, a request to replace unused vacation days with monetary compensation. Also here you need to indicate the reason for which the additional vacation arose, its duration and period. You must also specify Art. 126 of the Labor Code of the Russian Federation, on the basis of which such a right arises for an employee;
  • Then the date of application and the signature of the employee himself.

Based on the application, the personnel officer issues an order and sends an order to pay compensation to the accounting department. The employee must read the order and put his signature on it.

Payment of compensation is made within 10 days after the acceptance of the application or on the day of payment of the next salary.

Replacing a vacation with monetary compensation that does not exceed 28 calendar days is prohibited by law. But some employers meet the needs of employees and pay them such compensation for those holidays that employees “did not take off” over the past years.
Since this is prohibited by law, at the first inspection by the labor inspectorate, the employer, as a legal entity, will be fined in accordance with Part 1 of Art. 5. 27 of the Code of Administrative Offenses of the Russian Federation in the amount of 30 thousand rubles, and for the general director, as an official, the fine will be from 1,000 to 5,000 rubles.

The decision to pay compensation is made by the employer. It is his right, not his duty. This is stated in Art. 126 of the Labor Code of the Russian Federation, as well as in a letter from Rostrud dated March 1, 2007 No. 473-6-0.

Each employee has the right to annual paid leave (Article 21 of the Labor Code of the Russian Federation). Is it possible to replace vacation with monetary compensation? Let's figure it out.

Replacing vacation with cash compensation

As a general rule, the duration of the annual basic paid leave is 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

The employee may ask for monetary compensation to replace part of the vacation in excess of these 28 days (Article 126 of the Labor Code of the Russian Federation). This is possible if the employee is given a longer vacation. For example, disabled employees are entitled to an annual leave of at least 30 calendar days (Article 23 of the Law of November 24, 1995 No. 181-FZ).

Replacement of additional leave with monetary compensation

Some employees are entitled not only to the annual basic paid leave, but also to additional leave (Article 116 of the Labor Code of the Russian Federation). Such leave, for example, is due to employees working in irregular working hours (Article 119 of the Labor Code of the Russian Federation). And, in principle, additional leave can be replaced by monetary compensation, taking into account the 28-day rule.

For example, an employee with an irregular working day has a basic annual paid leave of 28 calendar days. He is also entitled to additional leave for an irregular working day lasting 3 calendar days. In total, an employee can rest 31 calendar days per working year. So, an employee can replace with monetary compensation three calendar days (31 days - 28 days).

Application for compensation for unused vacation: sample

In order for the vacation to be replaced by monetary compensation, the employee must write an appropriate application.

Such a statement might look like this:

It is not allowed to replace vacation with monetary compensation

As you know, there is an exception to every rule. And the legislation establishes categories of workers who are prohibited from replacing vacations with monetary compensation (Article 126 of the Labor Code of the Russian Federation). They cannot replace paid annual leave (both basic and additional) with compensation.

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