Labor legislation allows workers to be declared idle due to the fault of the employer. This procedure was supposed to give the latter the opportunity, under unfavorable circumstances, to suspend work processes and pay staff only 2/3 of average earnings. However, employers often use this opportunity not for objective reasons, but wanting to exclude unwanted or unnecessary employees from the company’s business processes. In this case, employees do not always agree with this formulation of the issue, because declaring downtime may be one of the steps taken by the employer in order to force the employee to resign. The law and the established practice of its application indicate that the employer’s will in itself to declare downtime due to his own fault is not enough.

Judicial practice pays attention to whether the employer has real circumstances that caused the announcement of downtime. Let us turn to court decisions that will allow us to draw conclusions about the employer’s risks in the event of downtime declared on his initiative.

Legislative regulation of downtime due to the fault of the employer

First, let’s figure out what the essence of such a legal instrument as declaring downtime due to the fault of the employer is. In the Labor Code of the Russian Federation, frankly speaking, the provisions on downtime are very meager; there is no separate article devoted to it. The definition of downtime is given in Art. 72.2 “Temporary transfer to another job” of the Labor Code of the Russian Federation. In accordance with it, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.

As follows from Art. 157 of the Labor Code of the Russian Federation, downtime occurs due to the fault of the employer, the fault of the employee, as well as for reasons independent of the will of the parties. It is on the factor of guilt and its subject that payment for downtime depends: in the case of the employer’s fault or if the reasons do not depend on the will of the parties, downtime is paid at the rate of 2/3 of the employee’s average earnings. If the employee is at fault, downtime is not paid.
However, the Labor Code of the Russian Federation does not contain the concept of guilt. Obviously, in this situation it will have to be borrowed from other branches of legislation.
In this context, we are interested in downtime due to the fault of the employer. When is she present? In accordance with Part 2 of Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to provide the employee with work stipulated by the employment contract, equipment, tools, workplace, machinery, etc., necessary for the performance of the labor function. And this kind of circumstances, such as non-payment by counterparties, lack of orders, etc., belong to the category of business risks, and these risks lie entirely with the employer; shifting them to the employee is unacceptable.
But what’s interesting is that even if the employer declares downtime due to his own fault, he should still do this only if there are objective reasons. After all, payment of 2/3 of the average salary and the inability to work are, in any case, negative consequences for the employee, which the employer does not have the right to create without objective reasons, only at his own discretion.
As for the procedural issues of introducing downtime due to the fault of the employer, there is also a gap in regulation. Obviously, the employee must be notified of the reasons, beginning and period of downtime, either before the start of downtime or directly on the start day. The most logical way to do this is by issuing an appropriate order. It also begs the question, should an employee be present at work during downtime? Since in accordance with Art. 107 of the Labor Code of the Russian Federation, downtime does not apply to rest time, then the employee should be present at the workplace in readiness to start work at the end of the downtime. However, if the employee’s presence during this period is not required or, moreover, is undesirable, this must be indicated in the downtime order.

As follows from practice, this is what actually happens.
The question also arises: should the declaration of downtime be limited to a specific period of time? Here again, no specifics can be found in the law. If the downtime is caused by reasons such as re-equipment of the enterprise, etc., then its period can be predicted and indicated in the order. If it is difficult to determine the duration of downtime in advance, you can announce it, for example, for a month, and then issue an order to extend it. If the reasons for declaring downtime no longer exist, nothing prevents you from issuing an order to stop it and inviting the employee to get acquainted and then return to work. You can issue an order with an open end date for downtime, indicating, for example, “until the end of the reasons for declaring downtime.”

Judicial practice on the reasons for declaring downtime due to the fault of the employer

Simple as being forced to quit

The employer declared the employee downtime, forcing her to make a decision on dismissal (Cassation ruling of the St. Petersburg City Court dated May 25, 2011 N 33-7694).

The situation when an employer offers an unsatisfactory employee to resign, even if there are no obvious legal grounds for this, happens quite often. In this case, the employer can use various methods of pressure on the employee, trying to put them into legal form.
In the example under consideration, the plaintiff, without any real reasons, was declared idle time with the preservation of 2/3 of her average earnings. She was allowed not to be present at the workplace, and her pass was blocked from the start date of the downtime. As a result, the plaintiff resigned by agreement of the parties, and then went to court with various demands, including invalidation of the downtime order and collection of underpaid amounts.
The Court of Cassation concluded that the employee was illegally removed from work - both by order of downtime and actually not allowed to enter the workplace - and was deprived of the opportunity to work. Accordingly, on the basis of Art. 234 of the Labor Code of the Russian Federation for the period of illegal downtime, she had to pay not 2/3 of the average earnings, but the entire average earnings.

Downtime until redundancy due to lack of trust

The employee was placed on idle time until he was laid off in order to prevent him from accessing information systems in a situation of acute mistrust on the part of the employer (Appeal ruling of the Moscow City Court dated July 16, 2014 in case No. 33-28011/14).

A real confrontation unfolded between the head of the IT department and his employer, during which the employer also used such a method of struggle as declaring downtime. The plaintiff subsequently challenged the legality of the demurrage order in court.
It all started with the fact that the employer issued an order about the upcoming reduction of some positions and divisions in the company, including the position of director of information technology. The same order ordered the director of the IT service to transfer all information on access and work in IT systems for the purpose of conducting an audit, and was also prohibited from accessing the company’s IT systems. However, a violation by the employee of this order was recorded, after which he was declared idle time with an “open” date - until further notice from the general director - and ordered not to go to work. At this time, the company, with the help of an external organization, carried out an audit of IT systems. However, even after the completion of the audit, the plaintiff was not allowed to work; the downtime lasted until his position was reduced and was paid at the rate of 2/3 of the plaintiff’s average earnings.
The court, recognizing the announcement of idle time to an employee as illegal, gave the following arguments. Thus, the defendant had no legal grounds for imposing downtime against the plaintiff, since, by virtue of the provisions of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. No such reasons have been established. The court took into account that the descriptive and evaluative formulation of the reasons that caused the downtime, set out in the Labor Code of the Russian Federation, indicates a variety of circumstances that can cause the suspension of activities, which makes it impossible to establish an exhaustive list of them in the law, but may be the subject of assessment by the court considering a labor dispute. But in any case, simple as a legal fact is a temporary event, and the employer, by virtue of Art. Art. 22, 56 of the Labor Code of the Russian Federation is obliged to take all measures within his power to stop downtime and provide the employee with the opportunity to perform labor duties stipulated by the employment contract.
However, the plaintiff was actually suspended by the employer from performing his job function until his dismissal. The employer did not prove the inability to provide him with work in his position for the period of the IT systems audit. And even after the end of the audit, the company did not terminate the downtime in relation to the plaintiff, thereby the employer did not provide the employee with the opportunity to perform labor duties, and the latter was illegally deprived of the opportunity to work. Thus, due to the groundlessness and illegality of the downtime, the court recovered in favor of the employee the difference between the payment for the downtime and his average earnings for the period of illegal downtime.

Downtime on the eve of liquidation

The workers failed to recognize the downtime they declared illegal, since the employer was facing liquidation (Appeal ruling of the Moscow City Court dated July 2, 2013 in case No. 11-20513/2013g).

A group of four workers filed a lawsuit to declare their downtime declared illegal and to pay them underpaid wages during the downtime. The situation in which they were declared downtime looked like this. The employer notified the employees of their upcoming dismissal due to the liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation). The employees were declared a downtime, which they did not agree with.
However, the court accepted the employer’s position on the legal introduction of downtime in relation to employees. Thus, the orders announcing it contained the following wording: “due to organizational reasons, expressed in a change in the organizational structure of the LLC, lack of work for certain positions established by the staffing table, with payment for downtime, exemption of employees from the obligation to visit the office.” The court also found that due to significant losses in the previous year, as well as a negative trend in business development, the defendant’s sole participant submitted a message to the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 46 for Moscow about the liquidation of the LLC, on the basis of which information was entered into the Unified State Register of Legal Entities about the start of liquidation .
Thus, the court came to the conclusion that the employer had a legal reason for declaring downtime, since there were reasons of an economic and organizational nature in connection with the difficult financial and economic situation of the company and its upcoming liquidation. Under such circumstances, workers had no reason to consider downtime illegal.

Job reduction as a reason for downtime

An upcoming job reduction is not a reason to declare downtime. This conclusion was reached by the Samara Regional Court in Determination No. 33-2390 dated March 15, 2011.

Thus, at the enterprise where the plaintiff worked, organizational changes occurred: the work that he performed was transferred to another division, where the same positions as his were introduced. In relation to the plaintiff's position, a decision was made to reduce it, and vacancies were offered to him. The plaintiff initially agreed to the transfer, but then refused. After which he was declared downtime, which the plaintiff contested. The cassation court declared the removal of an employee during idle time illegal for the following reasons.
As noted above, by virtue of Art. 72.2 of the Labor Code of the Russian Federation, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.
However, it was found that the amount of work performed by repairmen - colleagues of the plaintiff - has not changed; this work continues to be performed by the same number of mechanics, but transferred to another department due to changes in the staffing table. Despite the organizational changes that took place, the plaintiff’s labor function did not go away; there was an opportunity to provide him with work.
Thus, he was effectively suspended from work, since the employer had the opportunity to provide him with work and payment of appropriate wages. The employee’s consent to the transfer and subsequent refusal cannot serve as a basis for placing the plaintiff on downtime.
In addition, the beginning of the dismissal procedure for staff reduction in relation to the plaintiff is also not grounds for layoff, since such a dismissal procedure is not provided for by labor legislation. Accordingly, the order to remove the employee during downtime was declared illegal, and the company was charged with underpaid wages for the period of downtime.
A similar case is described in the Appeal ruling of the Samara Regional Court dated April 15, 2015 in case No. 33-4065/2015. Due to the fact that the enterprise that served Russian Railways had completed its component supply program and there were no requests for new supplies, the plaintiff was declared idle, and then notified of the upcoming procedure for reducing his position. The plaintiff was not satisfied with the situation when he was deprived of the opportunity to work, receive full wages and, without his consent, he was paid for downtime in the amount of 2/3 of his average earnings.
Of interest in this case is how the court interprets the concept of downtime and expresses its opinion regarding its introduction for the period preceding the reduction of position. He points out that the use of the concept of “downtime” is associated with extraordinary circumstances that do not allow the employer to ensure the work of the organization. The plaintiff was suspended from performing his labor function citing an insufficient amount of work and a decrease in the volume of orders. Moreover, during the downtime period, the work that he was supposed to carry out in accordance with his job responsibilities was performed by other employees of the organization.
The court came to the conclusion that in this case there was actually no downtime, and the plaintiff’s failure to fulfill his labor duties was due to the fault of the employer, who, in violation of Art. Art. 15, 16 of the Labor Code of the Russian Federation did not fulfill his obligation to provide the employee with work in accordance with the labor function he performs. Consequently, the plaintiff’s labor should be paid in an amount not lower than the average wage in accordance with Part 1 of Art. 155 Labor Code of the Russian Federation.
The following remark of the court is also interesting: the employer in this case was obliged to enter into an agreement with the employee to change the terms of the employment contract determined by the parties in writing. However, no such agreement was concluded between the parties, and therefore the plaintiff’s payment in the amount of 2/3 of the average salary in accordance with Art. 157 of the Labor Code of the Russian Federation is unfounded.
Also, orders for idle time were taken by the employer in relation to the plaintiff during the period of his warning about the upcoming dismissal, while organizational and staffing activities in the defendant’s company during the period of warning about dismissal to reduce the number or staff of the organization cannot be the basis for remuneration of the employee in the amount 2/3 of average earnings. The issuance of a downtime order during this period must be caused by a temporary suspension of work. If, due to staff reduction, the employer does not expect the possibility of ending the downtime, then there are no signs of a temporary suspension of work.
The downtime was declared not in order to provide the employee with the opportunity to actually perform labor duties in the previous or another position, but was due to the period of warning about the upcoming dismissal.
In accordance with these arguments, the employer's orders for idle time were declared invalid, and underpaid wages were recovered in favor of the employee.

As can be seen from the norms of the Labor Code of the Russian Federation on downtime and the given examples of judicial practice, downtime is a kind of economic instrument designed to protect the interests of both the employer and the employee in the event that the employer, for objective reasons, cannot conduct its business activities as usual.
In a normal situation, when the reasons for downtime are real and objective, the interests of the employee and employer are balanced as follows: the employee receives a kind of compensation of at least 2/3 of average earnings for unfavorable circumstances for him in the form of absence of work, and the employer gets the opportunity to save money and not pay wages in full for the employee’s forced inactivity. The courts in their arguments emphasize that downtime must be motivated by reasons of an extraordinary nature, and not simply by the desire of the employer. As we can see from the examples given, the court only in the situation of liquidation of the company considered it justified to introduce downtime in relation to employees precisely because liquidation is an extraordinary situation and caused by objective reasons: the decision of the founder of the legal entity and the unprofitability of the company.
In the case when idle time is introduced solely at the request of the employer, in order to save on wages and remove “harmful” employees from the company’s resources, the interests of the employee are infringed - he is deprived of the right to work and the right to full payment for his work. This case can be called an unfair application of the downtime procedure.
The main signs of an employer’s dishonesty when declaring downtime to an employee are the following:
1) no stoppage of business processes in which an employee who is on idle time is involved;
2) fulfillment of the duties of an “idle” employee by his colleagues;
3) introduction of a downtime procedure for the period ahead of the layoff of workers;
4) preventing an employee from accessing the workplace and other company resources in the event of a conflict situation between the employee and the employer.
Thus, when deciding to introduce a downtime procedure due to the fault of the employer, the latter should take into account the following recommendations:
1) downtime can be introduced only if there are objective reasons not determined by the will of the employer that do not allow the employee to perform his job function: suspension of business processes in which the employee is involved, liquidation, bankruptcy of the company, etc.;
2) if it is intended to transfer the duties of an idle employee to his colleagues or to another department, idle time cannot be introduced, since in this case the employer has the opportunity to provide the employee with work (which, by virtue of Article 22 of the Labor Code of the Russian Federation, is the employer’s responsibility);
3) the introduction of downtime cannot be motivated by an upcoming reduction in the number or staff of an employee if it is possible to provide him with work for the period preceding the reduction.
In conclusion, we would like to add that the main risk of unjustified downtime is the employee challenging it in court and recovering the amounts “saved” by the employer, as well as legal costs and compensation for moral damage.

In working life, there are often situations when an employee cannot fulfill his duties not of his own free will. They turned off the lights - work stopped, they are making repairs in the sales area - it is impossible to serve customers, raw materials were not delivered - there is nothing to produce goods from.

A variety of economic, technological and emergency conditions can disrupt the normal functioning of an organization. If these reasons are temporary and do not lead to the complete liquidation of the business, downtime is introduced.

What is downtime due to the employer's fault?

Downtime is understood as a forced suspension of work. This measure is being introduced due to the economic situation, equipment breakdown, lack of consumables and raw materials, demand for products, natural disasters, accidents, license revocation and a number of other reasons.

Depending on them, they distinguish:

• downtime due to the fault of the employer;
• downtime due to the employee’s fault;
• downtime due to circumstances beyond the control of the parties.

It occurs when it is introduced due to his fault (for example, revocation of a bank’s license for violations of the law or other suspension of activities by regulatory authorities, a fire due to the employer’s failure to comply with safety standards), or due to production necessity. The latter is the most common.

After all, sometimes it is necessary to repair and modernize equipment, move to other premises, hold sanitary days, and the like. It also happens that the necessary materials are not delivered to the enterprise or the demand for certain products or services drops sharply.

The employee is not to blame for this. Labor legislation stipulates that his work must be provided by management. To protect the employee and provide him with a means of subsistence while management solves their problems, the law provides for the guaranteed preservation of a portion of earnings during the period of downtime.

If the employer is not going to liquidate, and the reasons are obviously temporary and not too long-term, it is better to introduce downtime than to lay off workers.

This allows you to retain a staff of professionals and quickly resume production when the grounds for suspending activities no longer exist; in addition, you will not have to incur additional costs for paying compensation in the event of dismissal due to liquidation or staff reduction.

We draw up a simple one correctly

An order needs to be issued.

There is no special procedure for introducing downtime in the Labor Code of the Russian Federation.

In practice, if such a need arises, the head of the organization must issue a written order, where to write:

• company name;
• number and number of the order;
• what the order is about (“On the introduction of downtime”);
• grounds for suspension of work (equipment modernization, accident, premises renovation, etc.);
• which of the workers will be idle;
• downtime (start and end time);
• Are idle people required to come to work?
• amount of payment;
• who is responsible for carrying out the order.

The order is signed by the chief executive and is brought to the attention of all interested employees.

The law does not oblige management to ask the union’s opinion about downtime.

There are several nuances when drawing up an order. So, at the time the order is issued, it is not known how long the work will be stopped; it is better to write a minimum guaranteed period.

Especially if employees were allowed not to appear at work, or the need for downtime disappears for different employees in stages (for example, as the accident is eliminated in different workshops). If the reasons for downtime do not disappear within the period specified in the order, an order must be issued to extend the downtime period.

No special order to end the downtime is issued.

The exception is cases when work is resumed ahead of schedule or the conditions for the location of workers change.

Example of an order to introduce downtime

LLC "COMFORT"

No15-OD dated 06/17/2017

About introducing downtime

In connection with the replacement of retail equipment and repair work in the sales area, I order:

1. Declare downtime due to the fault of the employer for store sellers Victoria Sergeevna Smirnova, Oksana Viktorovna Kharcheva, Denis Vladimirovich Sergeev;
2. Set the deadline for introducing downtime from June 25, 2017. until July 10, 2017;
3. Allow the specified employees not to go to work during the specified period;
4. The accountant shall pay wages to idle employees in the amount of two-thirds of average earnings;
5. The HR officer should enter the RP code in the time sheet;
6. I entrust control over the execution of the order to myself.

We tabulate those who are idle

Since the beginning of 2013, time worked can be taken into account not only using standard forms T-12 and T-13, but also in any convenient form of timesheet approved in a specific organization.

When filling out a timesheet for a specific employee who is idle due to the fault of the administration, the RP code is entered in the first line, and below is the hourly indicator (for example, 8).

Employment service notification

Whether to inform the employment service about the downtime introduced or not depends on the circumstances of its introduction. If production has stopped entirely due to downtime, you need to notify. In other situations this is not necessary.

We pay for downtime due to the fault of the administration

Special procedure for paying for downtime.

The administration suspended work on its own initiative - it must pay the employee at least two-thirds of the average salary (Article 157 of the Labor Code). At the same time, the average salary includes, in addition to the salary, all bonuses, allowances and additional payments.

How the average salary is correctly calculated is explained in the Regulations on the specifics of calculating the average salary (see Decree of the Government of the Russian Federation of December 24, 2007 No. 922).

This is the minimum guaranteed by law.

However, by local acts, including direct orders to introduce downtime, the employer can guarantee an increased percentage of payment.

Idle time payment refers to, therefore it is accrued and paid in the same terms as a regular salary.

How to pay for downtime while on vacation

For employees on regular annual leave, there is no additional payment for downtime. But if an employee leaves and his department is idle, from the day of exit he is charged for downtime.

Payment is made in the same way if the employee goes on vacation from idle time. While the employee is idle, he receives 2/3 of his salary; when he goes on vacation, vacation pay is calculated.

If accruals do not reach the minimum wage

Sometimes accountants are faced with the fact that their salary during downtime is less than the minimum wage. This is relevant when work is suspended for a month or more or the employee’s salary is at the minimum level. The question arises whether it is necessary to pay extra to the minimum wage.

No. The law provides that wages should not fall below the minimum wage only when the employee has worked the full amount of time.

An idle employee does not actually work, which means there is no need to pay extra to the minimum wage.

Payment of sick leave during downtime

Sick leave is not always paid.

During downtime, sick leave is not paid. If an employee gets sick, and at that time work in the organization is suspended, then sick leave is paid for the days preceding the downtime, the percentage of payment depends on the length of service (60-100%).

From the date of suspension of activities, payment is 2/3 of the average salary. In this case, the employer pays for the first three days at his own expense.

If sick leave is covered by temporary downtime, then payment is made as for downtime; sick leave is not paid.

If the beginning falls during downtime, and its end is already outside this time, then sick leave is calculated from the day the downtime ends, and the first 3 days from the end of the downtime are paid from the organization’s funds.

What not to do

Workers can sue.

Some employers, in order to save money, replace downtime with unpaid leave. This is a gross violation of the law.

Firstly, to be sent on such leave, an employee’s written application is required. Secondly, days without pay are given for personal reasons of the employee, and not for production reasons. Therefore, management that forces its employees to write such statements runs a high risk of running into an inspection by the labor inspectorate.

In this case, careless management may run into a fine for failure to pay their subordinates their hard-earned dues; the chief accountant and the manager will have to shell out 10-20 thousand rubles each from their own pockets, but the organization itself faces a penalty of up to 50 thousand. And if this is a widespread practice, it can even reach criminal charges.

Often suspending work, for example in a workshop, management directs employees to clean the area or put things in order in the archive, in general, plugging those holes where there are not enough hands. It's not always legal.

Such translations require the written consent of the person being translated, with the exception of emergency situations (disaster, accident, flood, fire, etc.), when the translation is associated with a threat to human life and is necessary to prevent it or eliminate its consequences.

Then the employee can be transferred for a period of up to a month without asking him. But even in this case, the new job is selected taking into account the employee’s health condition.

If management respects its subordinates and does not want litigation, it should draw up the documents correctly and pay all the money owed to the employee. After all, it is not the employee’s fault that he had to loiter without work.

From this video you will learn what workers have the right to during downtime of the enterprise.

Form for receiving a question, write yours

The definition of downtime is disclosed in Article 157 of the Labor Code of the Russian Federation. This is the suspension of work processes at an enterprise due to technical, managerial, economic and other reasons. Its main feature is its temporality. It is expected that after certain factors have been eliminated, the organization will resume its work.

Possible causes of downtime due to employee fault

In the Labor Code, all issues related to downtime are explained very briefly. Specific reasons that could lead to suspension of work were not specified. The list of them is determined by the employer individually. However, we can highlight the most common reasons for suspension due to the fault of the employee, which are relevant in practice:

• Violation of the rules for operating equipment, which led to its breakdown.
• Refusal to undergo training or medical examination if it is required to perform the job.
• Intentionally creating conditions under which the continuation of production processes is impossible (for example, a strike).

If the following factors are present, responsibility for downtime cannot be assigned to the employee:

• The suspension is due to force majeure circumstances.
• This is a natural consequence of the enterprise’s operation and is associated with economic risks.
• Downtime entailed actions taken due to extreme necessity.

An employer cannot indiscriminately accuse an employee of stopping work. To identify the guilty person, according to Article 247 of the Labor Code of the Russian Federation, a special commission must be convened. The employee’s guilt presupposes that he has committed a disciplinary act of a guilty or illegal nature. If, for example, a person did not perform work that did not relate to his official duties, resulting in downtime, this cannot be a disciplinary offense.

IMPORTANT! An employee has the right to disagree with the employer’s accusations and challenge his decision in court, or complain to the labor inspectorate.

How is downtime due to an employee’s fault paid?

Is the period of suspension of work due to the fault of the employee paid? The Labor Code gives an unambiguous answer - the employer is not obliged to make any payments. However, only the guilty person loses his salary.

Downtime may affect the activities of employees for whom the suspension arose for reasons beyond their control. These employees will receive compensation. This rule is spelled out in a letter from Rostrud dated May 12, 2011. Accruals are made taking into account the following features:

• The amount of compensation is calculated based on the following formula: (salary/number of working days in the month of inactivity) * 2/3 * number of days in the period of suspension of work.
• Compensation paid to employees should not be less than 2/3 of the tariff rate.
• If an employee was on sick leave during the suspension of work, temporary disability benefits will not be accrued to him. The exception is when going on sick leave before downtime is introduced at the enterprise. In this case, benefits are accrued in the standard mode even if the employee continued to be on sick leave throughout the suspension.
• All payments made to employees, as well as temporary disability benefits, are taxed at the standard rate.

ATTENTION! Payments are made only to those employees who are not guilty of downtime. If more than one person is at fault for the suspension, no payment will be made to all of them.

Proper registration of downtime

Proper registration of downtime is necessary, first of all, for the employer. This way he will protect himself from possible problems with the labor inspectorate and other government agencies. Registration involves the preparation of three main documents:

• An act indicating the employee’s fault for downtime.
• Papers in which you need to record the fact of suspension of work.
• Order on transfer of employees to idle time.

Registration is carried out in accordance with the following algorithm:

1. Upon the fact of downtime, a report is drawn up. It requires a detailed description of all the circumstances that provoked the suspension. These circumstances must indicate the employee’s guilt. For example, you can indicate the fact of equipment breakdown that occurred as a result of an employee’s failure to comply with operating rules.
2. The employee must be familiarized with the act upon signature. If the employee refuses to sign, the act should be sent by a valuable letter and acknowledgment of receipt. The letter is sent to the employee's home address.
3. If the employer has concerns that the employee will dispute his guilt, an expert can be invited to draw up an opinion on the factors that provoked the downtime.
4. Appropriate marks are placed on the time sheet.
5. An order is being prepared to transfer the employee to idle time. The document is drawn up in any form. The Labor Code does not contain requirements for its execution, but it is advisable to reflect in the order all the circumstances of the suspension.

IMPORTANT! Usually, the employer cannot accurately predict the end of downtime, but it is advisable to indicate the approximate time frame for resuming the enterprise’s activities in the order. For example, it could be a week or a month.

Reflection of downtime in the timesheet

For suspension resulting from the fault of an employee, the letter code “VP” is relevant, as well as the numeric code “33”. If the reasons for downtime are different, the designations will change:

• Through the fault of the employer - “RP” and the code in numbers “31”.
• For reasons beyond the control of the employer and employee - “NP” and “32”.

Errors in recording downtime in the time sheet can become fatal when the enterprise is inspected by the labor inspectorate upon the appeal of the guilty employee.

5 common mistakes employers make when downtime

Not all employers thoroughly know the Labor Code, and therefore mistakes when registering downtime are not uncommon. Let's look at the most common of them:

1. Incorrect identification of the cause of downtime. Sometimes an employer announces a suspension of work to force an employee to write a letter of resignation. The employee can go to court. If the court does not provide evidence of the actual existence of circumstances surrounding the suspension of activities, the employee has every chance of winning the case.
2. Incorrect identification of downtime type. The type will depend on the reasons that led to the stop. If what happened is the employer’s fault, and he points out the employee’s fault in order not to pay compensation, then this is a grave mistake.
3. Lack of supporting documentation. Employers take advantage of the fact that the Labor Code does not provide any instructions regarding the execution of the order. However, it is better to provide for its availability, since the document confirms the legality of stopping activities. Based on this, the accounting department calculates compensation.
4. The order does not specify the obligation for employees to be at the workplace during downtime. The employee's obligation to be at the workplace is at the discretion of the employer. If he does not give appropriate instructions, employees may well not come to work.
5. Registration of leave for the period of downtime. Performed to reduce company costs. However, the manager must remember that unpaid leave is possible only if the employee has the appropriate initiative.

All these errors are taken from judicial practice in labor cases.

Before considering payment issues, let's figure out what downtime is, who is to blame for what, and who has to do what.

What is simple

In Efremova’s explanatory dictionary, the word is explained as “forced inaction.” Speaking about what forced downtime is due to the fault of the employer, the Labor Code of the Russian Federation adds important characteristics of this inaction: it must arise for economic, technical or organizational reasons.

How does downtime occur (according to the Labor Code of the Russian Federation)

• if the employee did not pass a medical examination or knowledge test on occupational safety through no fault of his own ( Art.76);
• if the employee was required to undergo a health knowledge test during underground work, but such a test was not carried out due to the fault of the employer ( Art. 330.4);
• if a credit institution’s license has been revoked (Art. 349.4 );
• if the strikers prevented a person not participating in the strike from performing his duties ( Art. 414).

In addition, there are many more options that the Code cannot provide for: a financial crisis, replacement of equipment or interruptions in the supply of components. And all these circumstances are characterized as downtime due to the fault of the employer - payment in this case must be made in accordance with the Labor Code.

How to register downtime due to the fault of the employer

The Labor Code does not answer this question. However, in order to avoid future problems and accusations from regulatory authorities of insufficient care about respecting the rights of working citizens, it is recommended to prepare an Order on the introduction of downtime.

This order must indicate:

1. Term.

Suspend work for the period from __.__.____ to __.__.____.

1. Causes.

Due to a breakdown of packaging equipment...

1. List of departments affected by the order.

Suspend work for the period from __.__.____ to __.__.____ in structural divisions: procurement department; packaging department; logistics Department…

1. The names of employees who are recognized as idle due to the fault of the employer.
2. Payment order.
3. Instructions to employees about where they should be during the period specified in the order.

...must be at their workplaces

... are exempt from the obligation to report to work places

If, for example, a breakdown of equipment occurred during its operation (it does not matter whether the employee is to blame or not), he must report the incident to the manager so that he can draw up a report of the breakdown. This document will become the basis for issuing the order described above.

By the way, you need to remember to enter the relevant information into your time sheet.

How is downtime due to the employer's fault paid?

The answer to this question is given.

Since this article deals only with the case when the employer is obviously to blame (not the employee, not the absence of a culprit), let’s see how to calculate the amount of payment for this particular situation.

So, according to the law, the employee must receive 2/3 of his average salary for those days that he was in forced inactivity. Before we look at a specific calculation example, let's remember what the average salary is.

In short: the average salary includes not only the salary or tariff rate, but also other payments, for example, bonuses, allowances, and so on (the regulatory framework is Decree of the Government of the Russian Federation of December 24, 2007 N 922).

For calculations, a period of 12 months is taken. All payments for this period are summed up. In addition, you will need to calculate how many days the employee worked over the last year (the Production Calendar will help here).

Calculation example

Over the previous 12 months, the employee earned:

50,000 (monthly salary) x 12 months + 100,000 (one-time bonus based on the results of 2016) + 10,000 (monthly bonus for mentoring) x 12 months = 820,000 rubles.

Average daily earnings will be 820,000 / 248 = 3306.45 rubles.

The payment amount should be calculated as

3306.45 rub. x 5 x 2/3 = 11,021.5 rub.

For reference

If the employee is at fault, he will not receive any compensation.

If the reason for the suspension of work was, for example, a natural disaster or some other event that the employer and employee could not prevent, the administration will also pay the employee 2/3, but not the average salary, but only the tariff or salary, calculated in proportion to downtime.

But there is a way to save the employee’s earnings: to do this, he needs to be transferred to another job with the same employer for a period of no more than a month. Written consent will only be required if the transfer involves a demotion. In case of such a transfer caused by downtime as a result of emergency circumstances, the salary must be paid not lower than the average earnings at the main place of work (see.

Suspension of the production process for reasons beyond one’s control is a mistake by the head of the enterprise. This measure is forced and may entail various inconveniences, but it is taken with the aim of preserving jobs, and by eliminating the factors that caused it, it allows the entire enterprise.

Regulations under the Labor Code of the Russian Federation

When such an unusual situation occurs, the employee needs to know his rights and defend them if necessary. The rights and responsibilities of a manager during downtime are described in detail in the Labor Code of the Russian Federation.

Any aspects of labor relations are reflected in a special legal document called the Labor Code of the Russian Federation. Forced downtime due to the fault of the employer is described in detail in Article 72.2 of the Labor Code of the Russian Federation; Article 157 specifies the minimum wage for an employee during a temporary suspension of the enterprise’s activities. In case of forced downtime of the enterprise due to fault
the employer, the employee at least 2/3 of his average salary for the period of absence from work and the employer not providing alternative opportunities to continue working in accordance with the employment contract.

This compensation is paid for the entire period of downtime. Compensation takes into account the average wage, which is calculated from the employee’s salary. In this case, the monthly salary is divided by the number of hours that he is required to work during this period and multiplied by the number of hours of forced downtime. If a forced suspension of work duties occurs
due to the fault of the employee, such compensation is not paid.

Why could this happen?

There are several reasons that can cause downtime:

Technological or technical reason

Most often, it is caused by the introduction of new equipment into production, which will require additional training and advanced training from personnel. Sometimes, suspension may occur due to
due to the failure of critical components and mechanisms, or other equipment, which will entail the inability of personnel to perform their duties until the functionality of the equipment is restored in full.

For technological factors of suspension of activities, responsibility lies entirely with the employer, and during the period of such a situation, monetary compensation is paid in accordance with the procedure established by law.

Organizational

Occurs at the moment when management makes a decision to change the organization of the production process.

Economic

A common reason for downtime is the financial distress of the enterprise. Very often, there is no direct fault of the employer in this type of suspension of production. Financial crises and sharp fluctuations in demand for a particular product may be the cause of this situation. Downtime of an enterprise may be caused by non-compliance by counterparties with their obligations.

Even if the forced suspension of the company’s activities is caused by external factors, responsibility, in any case, lies with the head of the enterprise. The concept of entrepreneurial activity implies conducting business at your own peril and risk, therefore, compensation to workers must be provided in full in case of this type of suspension of the enterprise.

Forced downtime due to the fault of the employer - registration process

In the event that an employee is unable to perform his duties for reasons beyond his control, he is obliged to immediately notify his management. Management can be notified in writing or communicated orally. Regardless of the form of notification, it is necessary to provide the exact time from the moment the work process was suspended.

After the employer is notified of the forced downtime, he needs to issue an order that will display the following points:

• start date of suspension of work;
• positions and full names of employees whose professional activities were suspended;
• indicate the amount of wages for the period of inactivity;
• indicate the person responsible for the forced downtime.

After issuing the order, the employer is obliged to familiarize each employee of the enterprise with this document.

Responsibilities of the employer in case of forced downtime

If the company is downtime due to the fault of the employer, he has the following responsibilities:
the employer must acknowledge the fact of downtime and issue an order in accordance with all the rules of the Labor Code of the Russian Federation;
The management of the enterprise must take all possible measures to stop the downtime.
The employer is obliged to provide employees of the enterprise with the opportunity to perform their work duties. If this is not possible, then management must provide monetary compensation to employees, in accordance with the Labor Code of the Russian Federation.

If the listed standards are not fully complied with by management, the employee has the right to go to court to compensate for wages during the period of downtime of the company.

Payment nuances – what and to whom?

In case of downtime due to the fault of the employer, employees are paid compensation for the entire period of absence from work, in the amount of at least 2/3 of the employee’s average salary. During downtime, the employee must be at work, otherwise compensation will not be paid to him.

What to do if the employer does not pay for the downtime period?

If the employer fails to pay compensation, the employee may go to court to recover the compensation due to him by law. On the part of the management, when the activity of the enterprise is suspended, cases of deception are possible. If a moment arises when the enterprise does not function due to the fault of the employer, management tries to send workers on vacation at their own expense.

If such violations of the labor code are discovered by the labor inspectorate, the employer faces significant penalties, as well as the risk of losing the right to engage in entrepreneurial activity for up to 3 years. If the company management does not pay compensation for the period of downtime, the employee has the right to file a lawsuit for compensation for moral damage. The amount of such a claim will depend on the law and the wishes of the injured party.

What should an employee do during downtime?

The downtime period is not a vacation, and the employee must be at the workplace even if he cannot perform his official duties due to the current situation. If an employee is at home during the downtime of the enterprise, this fact may be regarded as absenteeism, therefore, even if an agreement was reached with the employer that employees may not be present at work during this period, this fact should be reflected in the appropriate order.

The employee should exercise caution in such a situation. Even if there is verbal permission from management not to visit the place of work, it is necessary to require legal documentation of this. Many dishonest employers, taking advantage of the legal illiteracy of their subordinates after the end of the period of suspension of work, can accuse employees of violating labor standards in order not to pay monetary compensation for the period
just me.

If there is a position corresponding to his qualifications, the employer may offer to transfer the employee to another department. With such a transfer, the level of wages should not decrease. It is possible to make a transfer without the employee’s consent only in case of forced downtime for a period of no more than a month. If the suspension of the enterprise’s activities is possible for a longer time, then the employee can be transferred to a new department only with his consent.

The period for which an employee is transferred to a new department should not exceed 1 year. After this period, the employer is obliged to return the employee to his previous place of work, or officially register him at a new one.

Is sick leave paid for forced downtime?

During the period of forced downtime of the enterprise, sick leave benefits are not paid. If the employee’s period of incapacity for work began before the suspension of activities began, and ended during forced downtime, then he is paid sick leave only for hours actually worked at production.

A similar situation of payment of sick leave benefits may occur if a citizen’s incapacity for work arose during the downtime of the enterprise, and ended after the end of the downtime of the company, then in this case the benefit is also paid only during the operation of the enterprise in the standard mode.

Conclusion

During the period of suspension of the enterprise's activities, employees lose 1/3 of their earnings, but if management takes dishonest methods of financial relations with employees, they may lose their earnings in full. When downtime occurs, verbal instructions from the boss are not enough.

In the absence of appropriate written orders, it is necessary to require him to draw up an order in accordance with all the rules of the Labor Code of the Russian Federation. If the company’s management does not strive to comply with the legislation of the Russian Federation, then it is necessary to contact the relevant authorities to resolve conflict situations between the employer and employees.

In case of gross violations of the Labor Code, the employer may be sued for moral damages and wage compensation.

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