Irregular working hours: concept, definition, legislation and compensation

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

Irregular working hours - a concept in the Labor Code, which is quite common in practice and is applied within the framework of labor legislation. What does it mean and what features does it have? Let's talk about all this further in more detail.

General definition

An irregular working day is such a special time set for the employee to perform his immediate duties. This concept is disclosed in the norms of the Labor Code, and is also regulated by them.

In fact, irregular work is presented in such a way that an employee can be called at any time, outside the established general schedule. After that, for a certain time, he is obliged to perform all the tasks assigned to him in accordance with the agreement.

It is worth noting that despite the abstract nature of the definition of "irregular working hours", the employer does not have the rightexploit the labor of a subordinate for a period exceeding the period allowed by Russian labor legislation. Moreover, the involvement of an employee should be carried out only in case of production necessity, and not randomly.

It is important for any employer to remember that the irregularity of the working day is a condition that must be spelled out in an employment contract or contract concluded when hiring an employee. If such a regime is not documented, and the fact of the actual performance of duties will be present, then this type of work, on the basis of the provisions contained in the Labor Code of the Russian Federation, will be considered overtime, which is subject to completely different accounting and payment rules.

Regulations

The basic concept of an irregular working day is spelled out in Russian law. In particular, its reflection is present in the provisions of the Labor Code of the Russian Federation (Article 101).

It is important to note that in more detail the features of attracting employees to perform their own duties within the framework of an irregular day are spelled out in the text of the chapter of the Labor Code of the Russian Federation "Working time". In case of violation of the provisions prescribed by the said normative act, the perpetrator is subject to liability.

Features of irregular mode

It is important to note that, like any other legal concept, the irregular working day has its own specific, characteristic only forit features.

First of all, it is important to pay attention to the fact that an irregular schedule is not a standard, but a special mode of operation, to which only certain categories of employees can be involved, which we will talk about a little later. It is also important to remember that in order to involve a person in activities under the conditions under consideration, an appropriate order of the head of the enterprise is required, and it can be issued only in cases of emergency. From this we can conclude that people can be involved in work in the regime under consideration only occasionally.

Who should not be involved in this work

The legislator has established a certain list of those persons who cannot be involved in the performance of labor duties under irregular conditions.

So, on the basis of Art. 102 of the Labor Code of the Russian Federation, the regime in question cannot in any way be established at those enterprises that operate on the terms of a flexible regime or where a summarized record of the time spent performing labor duties is kept (Article 104 of the Labor Code of the Russian Federation). In addition to all that has been said, it is worth considering that certain groups of persons cannot be involved in the mode of operation under consideration, including:

• employees who are legally en titled to the payment of bonuses for the complexity, harmfulness of work or its special regime;
• part-timers;
• persons caring for a seriously ill family member;
• persons with a disabled child under the age of 14;
• minors;
• disabled 1st and 2ndgroups working in hazardous conditions.

Who can work under the indicated conditions

In addition to the definition of an irregular working day, the Labor Code of the Russian Federation presents a whole list of those persons who can be involved in the performance of labor duties in an irregular regime. Some of these include:

• those people who have the opportunity to distribute work at their own discretion;
• representatives of housekeeping, managerial and technical personnel whose daily schedule cannot be accurately recorded;
• those persons whose workflow, due to certain circumstances, cannot have a certain duration.

In fact, journalists of publications, drivers, municipal employees, directors of state institutions work in the conditions of the regime under consideration. Practice shows that the concept of an irregular working day is also widely used in the Ministry of Internal Affairs.

The legislator notes that the list of those employees who can be involved in the performance of duties as part of an irregular working day must certainly be indicated in the content of the organization's routine. It is important to note that Art. 101 of the Labor Code prescribes strict observance of this requirement only in relation to managerial positions, which makes it possible to conclude that ordinary employees can be involved in irregular work everywhere.

Grounds for establishing an irregular regime

As many lawyers say-practice, the concept of irregular working hours is enshrined in the Labor Code, but it is presented rather vaguely, without strict indication of many details. In this regard, in the practice of applying legal provisions, a large number of controversial issues arise, one of which is the definition of the conditions under which it is possible to attract employees to work under the conditions of the regime in question.

Along with the concept of "non-standardized working day", the Labor Code of the Russian Federation defines that this type of labor can be used only in cases of production necessity. In other words, in the process of working at an enterprise or organization, a situation should arise in which there is an urgent need for the activities of a particular specialist or the performance of certain professional actions. With all this, the legislator has not clearly defined the specific conditions, on the basis of which it can be concluded that it is the employer who must determine whether the same production need has arisen or not.

In the works of most experts in the field of jurisprudence, written on the subject under consideration, recommendations are often made regarding the improvement of this area of labor legislation, for which, in their opinion, it is necessary to formulate more clearly the concept of an irregular working day and eliminate the controversial generalizations "production necessity " and "organizational necessity".

Frames to stick to

It should be noted that the legislator does not define a strict admissibleduration of work in abnormal conditions. Nevertheless, in practice, one may encounter certain limitations in the area under consideration. In particular, the Labor Code indicates that the same employees cannot be involved in irregular work for several days in a row or daily, as well as on an ongoing basis.

As lawyers practicing in the field of labor law note, due to the blurred designation of the concept of irregular working hours in Russian legislation, this regime is very convenient for the employer. This is expressed at least in the fact that in order to involve an employee in activities on the specified conditions, although an order from the head is required, in fact it can be presented in any form - written or oral, because there is no strict indication of this in the regulatory framework. In practice, there are often violations on this basis, which are expressed in disagreement between the regime and the employee, as well as the absence of actually issued orders.

About due compensation

In addition to what the concept of "irregular working day" means, the content of the Labor Code of the Russian Federation also mentions the main compensation set for employees working in this mode, which is additional leave (Article 119 of the Labor Code of the Russian Federation). It is important to note that the duration of such leave may be determined by the content of the employment contract or collective agreement.

It is important to note that to requirethe provision of additional time for rest can only be those employees whose position is framed as providing for an irregular schedule in the prescribed manner.

Weekend attraction

Like any other employees, those who work in irregular hours, employers can involve in the performance of duties on weekends and holidays. It is worth noting that this group is fully covered by all the same norms of the Labor Code as for workers working under normal conditions. Based on this, it is worth considering that in order to legally attract such an employee, the employer must obtain his written consent, as well as a signature on the notification that the person has every right to refuse the offer. Also, a separate order of the appropriate content should be prepared for each employee.

Correct design

The definition of an irregular working day (according to the Labor Code) states that the case of applying the regime in question in relation to a specific position available in the schedule (or a group of them) must be drawn up in a special manner. Let's consider it further in more detail.

At present, a serious mistake of employers is that they consider the presence of an indication to the employee of the position of the staffing table with a column where, next to his position, the irregularity of her schedule is determined, a sufficient condition for recruitment to work under the conditions of the regime in question. On thein fact, the process should be carried out completely differently, but only on the basis of the provisions presented in Art. 101 of the Labor Code of the Russian Federation.

In fact, it is not enough for an employer to have only a list of full-time positions working within the irregular regime. So, the clause on the approval of an irregular schedule for a specific position must certainly be reflected in the content of the employment contract concluded in the process of hiring an employee. The employer must focus on this point, as well as familiarize the employee with the content of local regulatory acts, which also reflect this. Moreover, familiarization with the peculiarities of remuneration and the establishment of time for rest of a person accepted for such a position must certainly be made.

After the familiarization with the employee, an employment contract must be concluded. Further, an order is issued to the accepted person, in the content of which (in the column "Nature of admission and working conditions") the considered features of the position should be indicated. Only after that, the work book and the employee's personal card should be filled in.

If changes are planned to a previously existing position, the employee must be notified of this first. In the absence of objections on his part, an additional agreement of the appropriate content may be concluded between the parties to the existing employment contract.

In addition to all of the above, any employer should not forget that each exit of an employee in the order in question must be issueddocumented. It is important to note that in the absence of an indication of a special regime for a certain position in the labor schedule, an employee cannot be held liable for a disciplinary type for refusing to respond to a request for the actual performance of duties outside the working day.

Irregular hours and overtime

As practice shows, in fact, it regularly happens that the concept of "non-standardized working day" corresponds to the process of overtime work. If we regard such a comparison at the level of the legislative framework, then it is completely unlawful, because the concept of overtime, presented in Art. 99 of the Labor Code of the Russian Federation, implies the conduct by the employee of activities in excess of the established duration of the schedule, as well as above the normal total number of days. As real practice shows, an irregular day is widely equated with overtime work, which is fundamentally wrong, because when performing activities within the overtime schedule, the employer is obliged to provide the employee with additional guarantees.

It is important to note that among the modern population there is an erroneous opinion that in the performance of assigned duties within the framework of an irregular regime, an employee has every right to come to the workplace only during those periods when there is work. In fact, this is not so, because the legislatorit is determined that the group of employees in question must obey the generally accepted routine in force at the enterprise. In addition, representatives of this group are also not exempt from observing the rules of labor discipline.