Are they compensated for unused vacation? Compensation for unused vacation - when possible

In practice, it is not uncommon for an employer to pay compensation to an employee for unused vacation. In what cases is it possible to replace vacation monetary compensation? What are the features of calculating this type of payment? Does the composition of labor costs include monetary compensation for the part of the vacation that exceeds 28 calendar days? Is monetary compensation for unused vacation days subject to UST? We will try to answer these questions in this article.

Requirements of the Labor Code
in terms of providing leave to employees

Article 122 of the Labor Code of the Russian Federation the obligation of the employer to provide the employee with paid leave for the duration of 28 calendar days is determined ( Art. 115 Labor Code of the Russian Federation). The transfer of vacation to the next year is allowed (by agreement of the parties) only in exceptional cases (in particular, when an employee's departure on vacation in the current year may adversely affect the activities of the organization). In this case, the employee must use the days of the postponed vacation no later than 12 months after the end of the working year for which the vacation is granted.

An employer is prohibited from not granting an employee annual paid leave for two consecutive years ( Art. 124 Tax Code of the Russian Federation). At the same time, employees under the age of 18, as well as those who are employed in work with harmful and (or) dangerous working conditions, he is obliged to provide leave annually.

Thus, the legislation establishes strict restrictions for employers regarding the provision of vacations to employees. Nevertheless, in practice, employees often accumulate unused vacations from previous years. In this case, the employer retains the obligation to provide the employee with these holidays or pay him monetary compensation for their unused days.

In what cases is it paid
monetary compensation for unused vacation?

Cash compensation for unused vacation is paid upon dismissal ( Art. 127 Labor Code of the Russian Federation), as well as at the written request of the employee for the part of the vacation exceeding 28 calendar days ( Art. 126 Labor Code of the Russian Federation).

It should also be borne in mind that the replacement of vacation with monetary compensation is not allowed:

pregnant women;

employees under the age of eighteen;

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

Calculation of compensation for unused vacation

The amount of compensation for unused vacation upon dismissal (including for organizations that use the summarized accounting of working hours) is calculated as follows:

The calculation of the average daily (hourly) earnings for the payment of compensation for unused vacation is made according to the rules established by Art. 139 of the Labor Code of the Russian Federation and Regulations on the calculation of the average wages , and is calculated for the last three calendar months (unless another billing period is provided for by the collective agreement) by dividing the amount of actually accrued wages by the estimated number of days (actual hours worked) for the billing period.

Upon dismissal...

The most common case when monetary compensation is issued for unused vacation is the dismissal of an employee. It should be noted that upon dismissal, at the employee’s request, all unused vacations (both basic and additional) may be granted, unless his dismissal is related to guilty actions. The day of dismissal of the employee will be considered the last day of his vacation. In this case, the leave granted to the employee is paid, and, accordingly, compensation for unused leave upon dismissal is not paid.

note: compensation for unused vacation is also paid to employees who leave the organization in the order of transfer (on the basis provided for paragraph 5 of Art. 77 Labor Code of the Russian Federation).

In practice, when determining the number of vacation days to which an employee is entitled while working in an organization, certain difficulties arise. The fact is that the Labor Code of the Russian Federation provides for a specific procedure for calculating the days of unused vacation only for employees who have concluded an employment contract for up to two months - by virtue of Art. 291 of the Labor Code of the Russian Federation compensation is paid to them at the rate of two working days per month of work. For other categories of workers, the mechanism for such a calculation is not prescribed in the Labor Code of the Russian Federation.

The following calculation option is generally accepted. If the employee has worked in the organization for 12 months, which includes the vacation itself ( Art. 121 Labor Code of the Russian Federation), then he is supposed to annual vacation lasting 28 calendar days. In other words, full compensation is paid to an employee who has worked for the employer for 11 months ( clause 28 of the Rules on regular and additional holidays, Further - rules). If the resigning employee has not completed a period that entitles him to full compensation for unused vacation, compensation is paid in proportion to the days of vacation for the months worked ( clause 29 of the Rules).

When calculating the periods of work that give the right to compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of more than half a month are rounded up to the nearest full month ( clause 35 of the Rules).

Compensation is paid in the amount of average earnings for 2.33 days (28 days / 12 months) for each month of work.

Example 1.

The employee has been with the organization for 10 months. Upon dismissal, he was entitled to compensation for 23.3 days (2.33 days x 10 months). If he had worked for 11 months, he would have received compensation for a full month - 28 calendar days.

Thus, the 11th month of work entitles the employee to receive compensation for 4.7 days (28 - 23.3).

note: the specified norms in the payment of compensation worsen the situation of laid-off workers who have worked for less than 11 months, compared with persons laid off after 11 months of work. However, an attempt to challenge the clause 29 of the Rules in the Supreme Court of the Russian Federation was unsuccessful ( Decision of the Armed Forces of the Russian Federation dated 01.12.04 No. GKPI04-1294, Determination of the Armed Forces of the Russian Federation of February 15, 2005 No. KAS05-14), since, in the opinion of the judges, the principle of proportional calculation of compensation is fully consistent with a similar principle contained in Art. 291 of the Labor Code of the Russian Federation. The very fact that paragraph 28 of the Rules provides for the right of an employee who has worked for at least 11 months upon his dismissal to receive full compensation for unused vacation cannot in itself indicate the existence of any contradictions between paragraph 29 of the Rules and the provisions of articles 3, 114 and 127 TK RF.

Some organizations use a different method of calculation, which is reflected in collective agreement(or payroll). Since the working year is divided into approximately 11 months of work and 1 month of vacation, the employee earns a vacation entitlement of 2.55 days per month (28 days / 11 months). From the point of view of mathematics, this method of calculation is more correct and does not worsen the conditions for paying compensation for unused vacation upon dismissal of employees. However, its application will lead to an increase in labor costs, and this will most likely be regarded by the inspection authorities as an underestimation of the tax base for income tax. If there is disagreement with tax authorities, then you will have to defend your position only in court.

Example 2.

I. I. Ivanova was hired on 02.08.03. In 2004, she was on regular annual leave from 1 to 28 June (28 calendar days). In 2005, I.I. Ivanova was not on vacation. In April 2006, she wrote a letter of resignation to own will(since 24.04.06).

The salary of the employee is 10,000 rubles. per month. In addition, she received:

in January 2006 - a bonus based on the results of work for 2005 in the amount of 3,000 rubles. and a monthly bonus for meeting production targets in December 2005 - 500 rubles;

in February - a bonus for meeting production targets in January 2006 - 600 rubles;

in March - a bonus for meeting production targets in February 2006 - 700 rubles;

in April - a bonus for meeting production targets in March 2006 - 800 rubles. and performance bonus forIquarter of 2006 in the amount of 2,000 rubles.

The duration of the billing period in the organization is 3 months. The billing period has been fully completed.

Recall that upon dismissal of an employee, the calculation of payments due to him (including compensation for unused vacation) is made in a unified form No. T-61 "Note-calculation upon termination (cancellation) of an employment contract with an employee (dismissal)". So, let's give a step-by-step calculation of compensation for unused vacation by I. I. Ivanova.

1) Determine the amount of actually accrued wages for the billing period (January - March 2006). It includes:

official salary of an employee for three months in the amount of 30,000 rubles. (10,000 rubles x 3 months);

bonus based on the results of work for 2005 in the amount of 750 rubles. (3,000 rubles / 12 months x 3 months);

bonuses for meeting performance indicators in the amount of 1,800 rubles, including: 500 rubles. (since it was accrued in the month that falls on the billing period), 600 and 700 rubles.

note: the monthly bonus for meeting production targets in March 2006 (800 rubles), as well as the quarterly bonus based on the results of work for the 1st quarter of 2006 (2,000 rubles) are not taken into account, since they were accrued in a month that goes beyond the calculated period (in April).

Thus, the amount of actually accrued wages in the billing period will be 32,550 rubles. (30,000 + 750 + 1,800).

2) Calculate the average daily earnings for the billing period: (32,550 rubles / 3 months / 29.6 days) = 366.55 rubles.

3) Determine the number of days of vacation that remained unused. Recall that vacation is granted to an employee for the time worked by him, and not a calendar year. In other words, the calculation of the period for the right to receive leave begins from the date when the employee started work, and not from the beginning calendar year.

The first working year of I. I. Ivanova ended on 08/01/04, the second - on 08/01/05. During this time, the employee is entitled to 56 days of vacation (28 days x 2 years).

From August 2, 2005 to April 24, 2006, the third working year lasted, including 7 full months and one incomplete (02.04.06 to 24.04.06). Moreover, the latter is equivalent to a full working month, as it includes more than 15 calendar days. Thus, for the third year of work in the organization, I.I. Ivanova earned vacation for 8 full months, that is, she had the right to 19 days of paid leave (2.33 days x 8 months = 18.64 days).

The total number of vacation days earned by I.I. Ivanova is 75 (56 + 19). Consequently, upon dismissal, she is entitled to compensation for 47 days (75 - 28).

4) So, let's calculate compensation for unused vacation: 366.55 rubles. x 47 days = 17,227.85 rubles.

note: there are cases when, when calculating compensation, accountants determine the number of days of unused vacation in the last working month in a simplified version. In their opinion, if an employee leaves before the 15th, he does not have the right to vacation days for the last month, if after the specified date, accordingly, there is such a right. However, this approach is incorrect and can lead to errors in calculating the compensation payment. Therefore, the calculation should be made according to the established rules: take into account how many days the employee worked in total in the first and last months of work in the organization, and also be sure to calculate the length of service that gives the right to annual paid basic leave ( Art. 121 Labor Code of the Russian Federation).

If the employee continues to work in the organization ...

Article 126 of the Labor Code of the Russian Federation allows the employer Attention! It is his right, not an obligation) by agreement with the employee to replace last part vacation exceeding 28 calendar days, monetary compensation. At the same time, it is impossible to compensate for the main vacation for the current year with money ( Letter of the Ministry of Finance of the Russian Federation No. 03-05-02-04/13 dated February 8, 2006).

Unfortunately, this article does not clearly define the situation and can be read in two ways. On the one hand, it can be assumed that out of the available number of days of unused vacation (for example, an employee has not been on vacation for 3 years, which means that he has accumulated 84 vacation days), he must take 28 days off in any case, and the remaining 56 days (84 - 28) ask to be replaced with monetary compensation.

On the other side, Art. 126 Labor Code of the Russian Federation can be regarded as follows. Suppose that an employee is entitled to a main vacation - 28 days and an additional one - lasting 3 days, which is added to the main one. He didn't receive them for two years. As a result, 56 days of the main vacation must be provided to him as days of rest, and only the accumulated additional 6 days can be compensated in cash.

This duality will persist until amendments are made to the Labor Code of the Russian Federation. Accordingly, the explanations given in Letter of the Ministry of Labor dated April 25, 2002 No. 966-10, according to which, due to the uncertainty of the legislative wording, two options for the payment of monetary compensation are possible. The choice is made by agreement of the parties. That is, the employer and the employee must themselves agree on how many days of unused vacations in previous years to replace with monetary compensation.

Calculation of taxes from compensation for unused vacation

Personal Income Tax

When paying compensation for unused vacation, the employer is obliged to calculate and pay personal income tax on this amount ( paragraph 3 of Art. 217 Tax Code of the Russian Federation). Since compensation for unused leave upon dismissal must be paid to the employee on the day of dismissal ( Art. 140 of the Labor Code of the Russian Federation), then the tax withheld from it must be transferred to the budget when it is actually paid ( paragraph 4 of Art. 226 Tax Code of the Russian Federation), in particular, no later than the day of actual receipt of cash from the bank Money for the payment of compensation or on the day of transfer of this amount to the account of the employee or, on his behalf, to the accounts of third parties ( paragraph 6 of Art. 226 Tax Code of the Russian Federation).

Monetary compensation in return for a vacation exceeding 28 calendar days, paid at the request of the employee and not related to dismissal, as a rule, is paid together with the salary for the corresponding month ( paragraph 3 of Art. 226 Tax Code of the Russian Federation).

UST, contributions to the Pension Fund and compulsory social insurance
from industrial accidents

Subparagraph 2 of paragraph 1 of Art. 238 Tax Code of the Russian Federation determined that compensation for unused vacation paid to a resigning employee is not subject to UST ( letters of the Ministry of Finance of the Russian Federation dated September 17, 2003 No. 04-04-04 / 103, UMNS for Moscow dated March 29, 2004 No. 28-11 / 21211), as well as contributions to compulsory pension insurance ( paragraph 2 of Art. 10 of Federal Law No. 167-FZ dated December 15, 2001) and contributions to compulsory social insurance against industrial accidents and occupational diseases ( Clause 1 of the List of payments for which insurance premiums are not charged to the FSS of the Russian Federation, Further - Scroll,P. 3 accrual rules, accounting and expenditure of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases).

For compensations paid at the written request of employees who continue to work in the organization, other taxation rules are established. According to the Ministry of Finance, such payments are subject to UST on a general basis ( letters of the Ministry of Finance of the Russian Federation dated 08.02.06 No. 03-05-02-04 / 13,dated 16.01.06 No. 03-03-04/1/24,Federal Tax Service for Moscow dated 15.08.05 No. 21-11/57993). In addition, the accountant should not forget about contributions to the Social Insurance Fund.

note: Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 No. 106 clarified that Clause 3 of Article 236 of the Tax Code of the Russian Federation does not give the taxpayer the right to choose which tax (unified social tax or income tax) to reduce the tax base for the tax by the amount of the corresponding payments. In other words, if the taxpayer has the right to attribute compensation payments for unused vacation to expenses that reduce the taxable base for income tax, then he must accrue UST on them.

Example 3

In accordance with Art. 119 of the Labor Code of the Russian Federation, the organization provides an employee with an irregular working day with an annual additional paid leave, the duration of which is determined by the collective agreement and is 3 calendar days.

At the request of the employee (upon agreement with the administration), a part of the unused vacation exceeding 28 calendar days is replaced by monetary compensation .

Due to the fact that the specified compensation payment is taken into account for income tax purposes on the basis of paragraph 8 of Art. 255 Tax Code of the Russian Federation, it must be subject to UST.

note: There are cases when local tax authorities insist on the taxation of UST compensation for unused vacation, not related to dismissal, if this payment was not taken into account as an expense for income tax purposes. It should be noted that the courts take the side of the taxpayers on this issue (see, for example, Decree of the FAS UO of December 21, 2005 No. Ф09-5669 / 05-С2, TsO dated 12/15/05 No. A64-1991 / 05-10, SZO dated 28.01.05 No. А66-6613/2004).

Let's take another look at this issue. But we note right away that it is quite risky and will inevitably lead to disputes with the tax authorities. The essence of this approach is as follows: pp. 2 p. 1 art. 238 Tax Code of the Russian Federation from UST taxation all types of statutory Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government of compensation payments related to the performance of labor duties by an individual within the limits established in accordance with the legislation of the Russian Federation. Replacement of a part of the annual paid leave with compensation is provided Art. 126 Labor Code of the Russian Federation. The concept of compensation is not established in the tax legislation, therefore it should be used in the sense in which it is used in the Labor Code of the Russian Federation ( paragraph 1 of Art. 11 Tax Code of the Russian Federation). Therefore, all requirements are met Art. 238 Tax Code of the Russian Federation, and it is not necessary to accrue UST on the amount of compensation paid on written applications of employees (regardless of whether such payments are taken into account for income tax purposes).

Since monetary compensation in return for the part of the vacation exceeding 28 calendar days is provided Art. 126 Labor Code of the Russian Federation, and the Tax Code does not establish other rules, then by virtue of paragraph 1 of Art. 11 Tax Code of the Russian Federation the norms of the Labor Code of the Russian Federation are subject to application. Thus, in this case, all the requirements established by Art. 238 Tax Code of the Russian Federation. Therefore, it is not necessary to accrue UST for the amount of compensation paid upon a written application of employees who continue to work in the organization (regardless of whether such payments are taken into account or not taken into account for income tax purposes). There is also a positive arbitration practice in the considered case (see, for example, decreesFAS SZO dated 04.02.05 No. A26-8327 / 04-21, dated 07.11.05No. А05-7210/05-33). A taxpayer who has made a decision to replace part of the vacation exceeding 28 calendar days with monetary compensation is entitled to take into account the specified payment in labor costs in accordance with paragraph 8 of Art. 255 Tax Code of the Russian Federation. At the same time, there is no need to accrue UST for this payment.

Let's say a few words about contributions for compulsory insurance against industrial accidents: they are not charged on the amount of compensation for unused vacation ( item 1 of the List).

income tax

When calculating corporate income tax, the amount of monetary compensation for unused basic leave not related to dismissal, paid in accordance with labor legislation, is accepted as a reduction in the tax base. The basis is paragraph 8 of Art. 255 Tax Code of the Russian Federation(cm., letters of the Ministry of Finance of the Russian Federationdated 16.01.06 No. 03-03-04/1/24, Federal Tax Service for Moscow dated 16.08.05 No. 20-08/58249). Wherein, if the employer and employees have reached an agreement to pay monetary compensation for all days of unused vacations, then the unused vacations are combined, including for those periods when the Labor Code of the Russian Federation was in force, which did not allow such compensation, except when the employee was dismissed.

With regard to monetary compensation in return for additionally provided under a collective vacation agreement (that is, by own initiative employer), then such expenses are not deductible for tax purposes. This point of view is presented in particular in Letter of the Ministry of Finance of the Russian Federation of September 18, 2005 No. 03-03-04/1/284.

It should be noted that not all experts agree with it. The fact is that the Ministry of Finance, referring to paragraph 24 of Art. 270 Tax Code of the Russian Federation, equated the cost of compensation to the cost of vacation pay. But in the Tax Code of the Russian Federation these concepts are separated: the amount of compensation for unused vacation is included in the cost of wages on the basis of paragraph 8 of Art. 255 Tax Code of the Russian Federation, and vacation pay - according to paragraph 7 of Art. 255 Tax Code of the Russian Federation. At least therefore between them it is impossible to put an equal sign. At the same time in Art. 270 Tax Code of the Russian Federation it refers only to the cost of additional vacation pay (and not compensation for unused vacation).

From the foregoing, we can conclude that the Tax Code of the Russian Federation does not prohibit taking into account the costs of paying compensation in return for additional holidays when calculating income tax (regardless of whether such a holiday is provided for by labor legislation or collective and (or) labor contracts). It is clear that such a point of view is unlikely to be accepted by the regulatory authorities, so you will most likely have to defend your case in court.

There are categories of workers who, in accordance with the Labor Code and other federal laws extended basic leave is granted, but they are not considered within the scope of this article.

Regulation on the features of the procedure for calculating the average wage, approved. Decree of the Government of the Russian Federation of April 11, 2003 No. 213.

A collective agreement may establish a different settlement period for paying compensation for unused vacation (for example, 6 months, a year), if this does not worsen the situation of employees (Article 139 of the Labor Code of the Russian Federation).

Clause 28 of the Rules on regular and additional holidays, approved. People's Commissariat of Labor of the USSR 30.04.30 (valid in the part that does not contradict the Labor Code of the Russian Federation).

Decree of the State Statistics Committee of the Russian Federation dated 05.01.04 No. 1.

If the employee quit, for example, on April 10, 2006, then she would not be entitled to compensation for the last part-time work month, since she was at the workplace for less than 15 calendar days.

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 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 salary of the employee for 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” in previous years.
Since this is prohibited by law, at the first check labor inspectorate, on the employer, as on entity, a fine will be imposed 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 CEO, 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.

An employee's annual paid leave can be replaced with monetary compensation in only two cases - if the employee being dismissed has unused vacations or if it is a question of replacing a vacation part exceeding 28 calendar days with a cash payment (). 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 next day after presenting them with the corresponding requirement ().

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:
NW - 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 in terms of H for each incomplete month then you should summarize and substitute the resulting result in the formula for calculating the 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 entered into labor contract for a period of 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 6-day calendar working week attributable to 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 due to the employee compensation amount.

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 the 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 additional agreement to an 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

According to the provisions of Article 115 of the Labor Code of the Russian Federation, the employer must provide the employee with an annual basic paid leave of 28 calendar days. Separate categories workers are granted extended basic leave (i.e. more than 28 days). The Labor Code also provides for cases where the replacement of days of unused vacation is prohibited. Let's consider this issue in more detail.

According to the provisions of the regulatory enactments establishing the norms labor law, unused vacation days can be replaced by monetary compensation in the following cases:

at the request of the employee - part of the annual paid leave exceeding 28 calendar days ();

persons employed in harmful and dangerous working conditions (Article 117 of the Labor Code of the Russian Federation);

workers with irregular working hours (Article 119 of the Labor Code of the Russian Federation);

employees working in the regions of the Far North and equivalent areas ();

athletes and coaches (Article 348.10 of the Labor Code of the Russian Federation);

persons working in representative offices of the Russian Federation abroad (Article 339 of the Labor Code of the Russian Federation);

honey. employees (Article 350 of the Labor Code of the Russian Federation);

employees who are guaranteed such leave by federal laws (part 1 of article 116 of the Labor Code of the Russian Federation).

The following persons are entitled to extended leave:

groups of persons defined by federal laws (part 2 of article 115 of the Labor Code of the Russian Federation).

It is worth remembering that for certain categories of workers, the replacement of annual paid with monetary compensation is not allowed. These workers include:

persons under the age of 18 (part 3 of article 126);

pregnant women (part 3 of article 126 of the Labor Code of the Russian Federation);

employees customs authorities(clause 2, article 35 of Law N 114-FZ);

police officers (part 3, article 45 of the Regulations approved by Decree of the RF Armed Forces of December 23, 1992 N 4202-1 "On approval of the Regulations on service in the internal affairs bodies of the Russian Federation and the text of the Oath of an employee of the internal affairs bodies of the Russian Federation").

employees of the drug control authorities (clause 105 of the Regulations approved by Decree of the President of the Russian Federation of 05.06.2003 N 613 "On law enforcement service in the authorities for the control of the circulation of narcotic drugs and psychotropic substances");

persons employed in work with harmful and / or dangerous working conditions. The exception is the payment of monetary compensation for unused leave upon dismissal, as well as for the part of the annual additional paid leave that exceeds its minimum duration - seven calendar days (part 3 of article 126 and part 2, 4 of article 117 of the Labor Code of the Russian Federation);

workers exposed to radiation due to the disaster at the Chernobyl nuclear power plant.

Note: In accordance with Part 2 of Art. 122 of the Labor Code of the Russian Federation, the right to use leave for the first year of work arises for the employee after 6 months of his continuous work. By agreement of the parties, an employee may be granted paid leave before the expiration of 6 months.

Additional leave granted for work in hazardous conditions is due to an employee if he actually worked in such conditions for at least 11 months in a working year (paragraph 2, clause 8 of Instruction N 273 / P-20). If he worked less than this period, then he is granted additional leave in proportion to the time worked in such conditions (clause 9 of Instruction N 273 / P-20, Letter of Rostrud dated 03/18/2008 N 657-6-0);

Additional leave for work in an irregular working hours does not depend on the length of time worked in the working year in an irregular working day (Rostrud Letter dated 05.24.2012 N PG / 3841-6-1);

Making holiday pay

To pay compensation for vacation, the employer must perform the following sequence of actions:

receive a written statement from the employee;

issue an order;

enter information about the replacement of part of the vacation in the employee's personal card and vacation schedule.

Note: Study leave is not related to annual paid holidays, but is considered additional targeted leave related to training (Articles 173-176 of the Labor Code of the Russian Federation). Therefore, the employer is not entitled to replace the employee study leave monetary compensation (Letter of the Federal Tax Service for Moscow dated December 27, 2006 N 20-12 / 115069).

Payment of monetary compensation for unused vacation upon dismissal

In accordance with Part 1 of Art. 127 of the Labor Code of the Russian Federation upon dismissal, the employee is paid monetary compensation for all unused vacation days. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day.

Upon dismissal, monetary compensation in full size receive employees who have worked with the employer for at least 11 months, or employees who have worked for more than 5.5 months and are dismissed for one of the following reasons:

liquidation of the enterprise;

downsizing;

transfer to another job at the suggestion of the labor authorities;

entry into active military service;

reorganization or temporary suspension of work;

business trip to in due course to universities, technical schools (or to preparatory courses of these educational institutions);

unsuitability for work.

In other cases, compensation is paid in proportion to the hours worked.

Note. In accordance with Art. 291, 295 of the Labor Code of the Russian Federation for employees hired for a period of up to 2 months, or employed in seasonal work, monetary compensation upon dismissal is paid at the rate of two working days per month of work.

When calculating the number of days of unused vacation, the length of service includes:

actual work time;

the time when the employee did not actually work, but in accordance with the labor legislation and other acts containing labor law norms, the collective agreement, agreements, local regulations, the labor contract, the place of work was retained, including the time of annual paid leave, non-working holidays, days off and other days of rest provided to the employee;

forced absence time illegal dismissal or suspension from work and subsequent reinstatement in the previous job;

time of unpaid leave granted at the request of the employee, not exceeding 14 calendar days during the working year;

the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own.

Work experience does not include:

the time the employee is absent from work good reasons, including as a result of his suspension from work in the cases provided for;

parental leave until the child reaches the legal age.

Note: In accordance with Art. 121 of the Labor Code of the Russian Federation, vacation time without pay, not exceeding 14 calendar days during the working year, is included in the vacation period.

The final amount of compensation for unused vacation is paid based on average earnings. In accordance with Art. 139 of the Labor Code of the Russian Federation, the average daily earnings for payment of compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.3 (average monthly number of calendar days).

By general rule compensation for unused vacation days, that is, a cash payment instead of rest, is due to the employee only upon dismissal (Article 126 of the Labor Code of the Russian Federation). Only in some cases, it is possible to compensate the vacation with money to those who continue to work. And not completely, but partially.

Holiday compensation, what part can be compensated in cash

Each employee has the right to an annual leave of 28 calendar days with the retention of the position and average earnings. According to the employee may ask on the replacement of a part of such leave exceeding 28 calendar days, for monetary compensation upon written application. The application must be signed by the employee, and all visas of the employer must be affixed.

If earlier the employee could take monetary compensation for vacation for all previous years when he did not use this right and part of the vacation exceeding 28 days of the current year. With changes to labor Code, article 126, this rule has become stricter.

Note: If an employee has not been on vacation for more than two years, then the employer may be fined.

What part of the vacation can be compensated with money

A working employee will be able to receive monetary compensation in return for annual leave only when he is entitled to additional or extended leave. You can compensate with money only for part of the rest time, which exceeds 28 calendar days a year. That is, within the limits of a regular vacation, compensation cannot be used!

At the same time, there is no legal limit on the number of days that can be compensated. You can replace money with additional rest days due to an employee for any time, for example, for working on weekends and holidays.

So, compensation can only be paid for additional vacation days for any year. Thus, the employee can be paid compensation for unused vacation only after his dismissal.

If, nevertheless, the employer replaces the vacation with compensation, he thereby violates the law, therefore, he will not be able to include these expenses in the tax base for income tax.

Upon dismissal, an employee may be replaced by monetary compensation with the provision of leave with subsequent dismissal. If a fixed-term employment contract was concluded with the employee, then the last day of work will be the day of exit from vacation, and not the date on which the contract was concluded.

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When you can not replace vacation with compensation

It is prohibited to pay compensation instead of the main vacation before dismissal. It is impossible to replace the days of additional or extended leave with compensation to employees of the following categories (paragraph 3 of Article 126 of the Labor Code of the Russian Federation):

• pregnant women;
• minors. That is, employees who have not reached the age of 18;
• those who are engaged in hard work and work with harmful working conditions. It is permissible to replace additional leave for harmful or dangerous conditions labor only in the part exceeding seven calendar days. At the same time, the procedure, size and conditions for such a replacement are established in industry or inter-industry agreements or in a collective agreement (Article 117 of the Labor Code of the Russian Federation).

Separate restrictions are provided for employees:

• customs authorities (clause 2, article 35 of the Law of July 21, 1997 No. 114-FZ);
• internal affairs bodies (Part 3, Article 45 of the Regulation, approved by the Resolution of the Supreme Council of the Russian Federation of December 23, 1992 No. 4202-1);
• other state bodies, if it is directly established by internal orders or legislation.

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Application for the replacement of vacation with compensation, order of the head

The employer is not entitled to pay compensation instead of vacation at will. He can do this only after he receives an application from an employee (part 1 of article 126 of the Labor Code of the Russian Federation).

Director of Gasprom LLC
A.V. Ivanov

from the cashier
A.V. Petrova

STATEMENT

I ask you to replace my part of the vacation (three calendar days), which exceeds 28 calendar days, with monetary compensation.

Pay compensation for unused vacation, not related to the dismissal of an employee or not, the head of the organization decides. But he does not have such an obligation (letter of the Ministry of Labor of Russia dated April 25, 2002 No. 966-10).

Note : Order to replace part of the vacation with monetary compensation

Gasprom LLC

TIN 4308123456, KPP 430801001, OKPO 91256423

full name of the organization, identification codes (TIN, KPP, OKPO)

ORDER No. 4

on the replacement of part of the vacation with monetary compensation

Kirov 15.05.2019

Based on the statement of A.V. Petrova dated 05/15/2019 I ORDER:

1. Replace the established by the employment contract dated September 12, 2002 No. 16-TD to the cashier A.V. Peter's additional paid leave for work experience in the organization lasting three calendar days with monetary compensation.

2. The personnel department shall ensure that the changes specified in paragraph 1 of this order are made to the personnel documents of A.V. Petrova by May 29, 2019.

3. When calculating vacation pay, accountants should take into account the replacement of the cashier A.V. Petrova three days of additional leave with monetary compensation.

I reserve control over the execution of this order.

Director Ivanov A.V. Ivanov

Familiarized with the order:

Chief Accountant Sidorova A.S. Sidorova
15.05.2019

Head of Human Resources Gromov E.E. Gromov
15.05.2019

Cashier Petrova A.V. Petrova
15.05.2019

In case of dismissal of an employee, he is paid monetary compensation for all unused vacations., and if the working year is not fully worked out, then compensation is calculated in proportion to the months worked.

Compensation for unused vacation upon dismissal is paid to all employees, regardless of the reason for dismissal. This also applies temporary workers hired for a period of up to 2 months, and employees with whom a fixed-term employment contract has been concluded, and employees who have been probation, and they did not pass it, and part-time workers. All compensation is calculated based on average earnings.

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Compensation for unused vacation

The Labor Code of the Russian Federation provides for the mandatory provision of annual paid holidays in the amount of 28 calendar days, unless otherwise provided by federal laws. In addition, in the process labor relations some categories of workers have the right to various additional or extended holidays (for irregular working hours, for length of service, for harmful working conditions). But it happens that the vacation can not always be used or can be used only partially.

In this case, the law provides the possibility of replacing part of the annual paid leave with monetary compensation.

Replace with monetary compensation only that part of the annual leave which exceeds 28 calendar days.

If an employee has not used vacation for two years, then only a part of each annual vacation exceeding 28 calendar days can be replaced with compensation. For example, not having completed annual leave in full in the past year, an employee who is not entitled to additional holidays, next year he asks for a vacation in the amount of 28 calendar days, and for the remaining few days of vacation for the last year he asks to be replaced with money. This substitution is not possible., since the employee's vacation does not have a part exceeding 28 days, and vacation will have to take.

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Unused vacation compensation upon dismissal, calculation on the calculator

If an employee has worked in the organization for at least 11 months, then he is entitled to compensation for all 28 calendar days.

In other cases, compensation is paid in proportion to the hours worked. For every full month of work, there are 2.33 calendar days of vacation (28 days: 12 months).

If the leave is of a different duration, then the number of days of full leave is divided by 12 months. The resulting number of days is rounded up to an integer value in favor of the employee.

When calculating compensation, the payments provided for by the wage system established at the enterprise are taken into account.. As a rule, this is the basic salary of an employee, various allowances and additional payments, bonuses provided for by the salary system, etc. But some payments are not taken into account when calculating compensation: the amount of sick leave and maternity benefits, as well as the average earnings paid in cases provided for by law (study leave, business trips, downtime pay, etc.). Not only these amounts are excluded from the calculation, the billing period is reduced by the days for which they were accrued, as well as those days for which nothing was paid to the employee (vacation at his own expense).