It doesn’t often happen that on the day of dismissal an employee takes exactly as many vacation days as he earned. There are almost always unused vacation days, and the employee must compensate them. To calculate compensation, you must first determine the vacation period and calculate the number of such days, and then determine the billing period and payments taken into account for this period. Our mail traditionally contains many questions regarding the calculation of this compensation.
Vacation compensation is due if you have worked for at least half a month
G.V. Romodina, Ufa
The employee worked for us for only 2 months. Is he entitled to compensation for unused vacation, since he has not yet earned the right to vacation?
: Yes, it’s allowed. An employee begins to earn paid leave from the first day of work for this employer. Art. 115 Labor Code of the Russian Federation. Upon dismissal, vacation compensation is calculated in proportion to the months worked. If an employee has a month not fully worked, then he clause 35 of the Rules, approved. NKT USSR 04/30/30 No. 169;:
- counted as full if half a month or more has been worked;
- is not taken into account if less than half a month is worked.
Therefore, even if an employee works for only half a month and quits, he needs to be paid compensation for 2.33 days (28 calendar days/12 months).
Compensation is calculated not for calendar months, but for months worked
M.V. Yuryeva, Kyzyl
The employee was hired on 02/20/2012 and plans to resign on 11/09/2012. Do we understand correctly that he needs to be paid compensation for 8 months (from 03/01/2012 to 10/31/2012), but there is no need to pay compensation for February and November, since less than half a month was worked in each of these months?
: No, that's not true. The length of service for payment of compensation, as well as for vacation, is calculated not for calendar months, but for months worked. Therefore, the employee is entitled to compensation for 9 months:
- from 02/20/2012 to 10/19/2012 - 8 months;
- from 10/20/2012 to 11/09/2012 - another full month, since 21 calendar days have been worked (more than half the month).
Those who fail the test are also entitled to compensation for vacation
IN AND. Ananyeva, Tolyatti
The employee was hired on September 3, 2012 from probationary period 3 months. He is dismissed as having failed the test on 09/21/2012. Are we obligated to pay him compensation for unused vacation?
: Yes, we must. Those who fail the test have the same right to leave as other employees in Letter of Rostrud dated 07/02/2009 No. 1917-6-1. An employee must be paid compensation for unused vacation if he has worked for at least half a month. Art. 127 Labor Code of the Russian Federation; Letter of Rostrud dated June 23, 2006 No. 944-6. The employee worked for you for 19 days. This means that he is entitled to compensation for 2.33 days of vacation.
Working part-time does not reduce the number of days of earned vacation
E.A. Khromova, Penza
In our organization, some employees have incomplete work time: They work not 5 days, but 3 days a week. How to determine the number of days of unused vacation of such employees for payment of compensation upon dismissal?
: The number of days of unused vacation for which compensation is paid is determined for such employees in the same way as for ordinary employees (based on months worked). After all, weekends are included in the length of service for vacation Art. 121 Labor Code of the Russian Federation.
The number of days of unused vacation can be rounded, but only in favor of the employee
P.M. Leonova, Stary Oskol
Upon dismissal, employees are entitled to compensation for unused vacation at the rate of 2.33 days per month of work (28 days/12 months). When calculating it, you always get a fractional number of vacation days. Do we need to round it to a whole number?
: Mandatory rounding to the whole number of days of unused vacation is not provided for by law. However, you can establish the possibility of such rounding by your local regulations. However, in this case, rounding according to the rules of arithmetic is not allowed. Rounding should always be done in favor of the employee. So, if he is entitled to compensation for 7 months of work - 16.31 days of vacation (2.33 days x 7 months), then he can round up to 17 calendar days. Rounding in reverse side illegal, as it worsens the situation of the employee Letter of the Ministry of Health and Social Development dated December 7, 2005 No. 4334-17. If local normative act no, use the fractional number of days to calculate compensation.
We count the days of unused vacation step by step
L.A. Zhukovskaya, Ulyanovsk
The employee was hired on 02/01/2012 and plans to resign on 11/02/2012. During the period of work, he was on leave without pay for 20 days and on annual paid leave for 8 days. The duration of an employee's vacation is 28 calendar days. How to calculate the number of days of unused vacation?
: In this situation, the calculation sequence is as follows.
STEP 1. We determine the number of months worked by the employee from the date of employment to the day of dismissal: from 02/01/2011 to 11/02/2012 - 9 months 2 days.
STEP 2. We exclude periods that are not counted towards the length of service for vacation.
The vacation experience includes only 14 calendar days of vacation without pay per working year. Art. 121 Labor Code of the Russian Federation. How many calendar days of unpaid leave must be taken into account in the vacation record if at the time of dismissal the employee worked part-time?
FROM AUTHENTIC SOURCES
Deputy Head of the Federal Service for Labor and Employment
“When calculating compensation for unused leave of service, which gives the right to basic annual leave, you must include all 14 calendar days of leave without pay. Art. 121 Labor Code of the Russian Federation regardless of how long the employee had worked at the time of dismissal.”
Therefore, we take into account 14 calendar days of unpaid leave in the vacation record, and subtract 6 calendar days (20 days - 14 days) of such leave from the time worked. Therefore, compensation is due to the employee for a period of 8 months 27 days. They should be rounded up to 9 months in Letter of Rostrud dated June 14, 2012 No. 854-6-1.
STEP 3. We determine the number of vacation days earned by the employee:
2.33 days x 9 months = 20.97 days
STEP 4. Determine the number of days of unused vacation:
20.97 days (number of days of earned vacation) – 8 days. (number of days of vacation used) = 12.97 days.
If the contract period is more than 2 months, compensation is paid according to the general rules
T.N. Tereshkina, Orenburg
To carry out repair work, our store entered into a fixed-term employment contract with the employee from 08/01/2012 to 01/31/2013. But he quits at will 01.10.2012. Is it right that we should pay him compensation at the rate of 2 working days of vacation for each month of work?
: Vacation at the rate of 2 working days per month of work is due to employees with whom a fixed-term employment contract has been concluded for a period of up to 2 months in Art. 291 Labor Code of the Russian Federation, and seasonal workers with whom the contract is concluded for a period of up to 6 months per Art. 295 Labor Code of the Russian Federation. In your case, the employee has a fixed-term employment contract for 6 months, and the work is not seasonal. Therefore, he is entitled to compensation at the rate of 2.33 calendar days for each month, that is, 4.66 calendar days. The fact that an employee quits after working only 2 months does not matter.
We determine the number of days of unused vacation if the employee quits while on vacation
The employee was hired on September 20, 2010. In 2011, he took a full vacation. In 2012, he went on vacation from 09/10/2012 to 10/07/2012 (for 28 calendar days). He warned that he would write a letter of resignation from last day vacation. Do we understand correctly that he is not entitled to compensation for his vacation?
: No, the employee must be paid compensation for 1 month. The fact is that during the vacation itself, the employee also receives vacation pay. Art. 121 Labor Code of the Russian Federation.
In your case, for the period:
- from 09/20/2010 to 09/19/2011 the employee took leave;
- from 09/20/2011 to 09/19/2012 the employee took leave;
- On September 20, 2012, the employee began a new working year and began to qualify for vacation. During the period from September 20, 2012 to October 7, 2012, he already had 18 days of vacation experience. Therefore, he needs to pay compensation for 1 month, that is, 2.33 days.
There is no compensation for days of absence
L.A. Feshchenko, Kazan
The employee was hired on April 2, 2012. From 08/01/2012 to 08/23/2012 he was not at work for an unexcused reason. In this regard, on August 31, 2012, he was fired for absenteeism. Was it necessary to include days of absenteeism in August 2012 when calculating compensation for vacation?
: Absenteeism time is not included in the length of service for vacation Art. 121 Labor Code of the Russian Federation. Therefore, you had to pay compensation to the employee not for 5 months (from 04/02/2012 to 08/31/2012), but for 4 (from 04/02/2012 to 07/31/2012). After all, in August 2012, the employee worked 8 calendar days (from August 24 to August 31, 2012), which is less than half a month. But when calculating average earnings, days of absenteeism are not excluded from the calculation period. And for August you should have taken into account 29.4 days. Because of this, the amount of vacation compensation for this employee is less, which is quite fair.
During maternity leave compensation is due
O.I. Prokoshina, Smolensk
A woman quits her job immediately after taking leave to care for a child of up to one and a half years. Before maternity leave, she took all the vacation days she was entitled to. Do we understand correctly that we should not pay her compensation for vacation upon dismissal?
: No. Maternity leave, unlike parental leave, is counted towards the length of service for leave. Art. 121 Labor Code of the Russian Federation. Therefore, you must pay her compensation during her maternity leave.
We determine the calculation period for dismissal during parental leave
I.E. Fedina, Rostov-on-Don
An employee on maternity leave will be dismissed on 10/31/2012. From 04/05/2010 to 08/22/2010 she was on maternity leave, and from 08/23/2010 until the day of her dismissal - on maternity leave. What calculation period should be used to calculate compensation for unused vacation?
: The calculation period for calculating compensation for unused vacation is 12 calendar months preceding the month of dismissal. Moreover, if the day of dismissal falls on the last calendar day of the month, then this month is included in the billing period Art. 139 Labor Code of the Russian Federation;.
In your case, the 12 months preceding the employee’s dismissal (from November 1, 2011 to October 31, 2012) include parental leave, which is excluded from the calculation period. Therefore, for the calculation you need to take the 12 months preceding the billing period (from 11/01/2010 to 10/31/2011) clause 6 of the Regulations, approved. Government Decree No. 922 dated December 24, 2007 (hereinafter referred to as the Regulations). However, at this time the woman was also on maternity leave. And we also cannot take them for calculation. In such a situation, to calculate compensation, you need to take 12 calendar months preceding the month of the start of maternity leave, when the employee had payments. That is, to calculate compensation for unused vacation, you need to take the period from 04/01/2009 to 03/31/2010.
The month of dismissal is not included in the pay period if it is incomplete
O.S. Bazhanova, Syzran
The employee was hired on October 1, 2012. Going to resign on November 2, 2012. When calculating compensation for unused vacation, do I need to take into account the salary for 2 days in November?
: No no need. Only full calendar months are included in the billing period Art. 139 Labor Code of the Russian Federation; Letter of Rostrud dated July 22, 2010 No. 2184-6-1. The billing period in your case is November 2011 - October 2012. Moreover, for 11 of the 12 months in it, the employee has not yet worked in your organization. Therefore, compensation needs to be calculated only based on the salary for 1 month - October 2012.
Compensation is calculated based on the average salary for the pay period
A.M. Tagina, Ekaterinburg
The employee was hired in 2010. He did not take any vacation. He will resign on October 31, 2012. How to calculate compensation: based on the last salary or separately based on the salary for each year (for 2010, 2011, 2012)?
: To calculate compensation, the salary in the billing period is taken into account - the last 12 calendar months in Art. 139 Labor Code of the Russian Federation. Therefore, take the salary for the period from 11/01/2011 to 10/31/2012.
Vacation compensation must be indicated in the certificate for calculating benefits
M.I. Shershneva, Stavropol
The employee will resign on October 26, 2012. Is it necessary to take into account the amount of compensation for unused vacation when preparing a salary certificate for calculating social insurance benefits?
: In such a certificate you need to indicate the amount of payments to the employee for which contributions to the Social Insurance Fund were calculated clause 3, part 2, art. 4.1 of the Law of December 29, 2006 No. 255-FZ; Appendix No. 1 to the Order of the Ministry of Health and Social Development dated January 17, 2011 No. 4n:
- for 2010 and 2011;
- for the current year from 01/01/2012 to 10/26/2012.
Contributions to the Social Insurance Fund are calculated for compensation subp. “d” clause 2, part 1, art. 9 of the Law of July 24, 2009 No. 212-FZ, so you include it in the help.
When calculating the number of vacation days, according to the Labor Code of the Russian Federation, each month that the employee worked in a given working year is taken into account. A working year means 365 days during which an employee performed his job duties. For example, if he got a job on March 5, 2018, then the first working year ended on March 4, 2019. It is for this length of service that the calculation of how many days of vacation is made.
In most cases, employees are given 28 days of vacation. But some organizations provide employees with extended leave. For example, workers in the Far North receive additional days. Teachers and pedagogues can take leave for 42-56 days. In any case, the minimum number of calendar days allocated for rest is 28 per year. If a person has worked at an enterprise for only 10.5 months, then according to the law, vacation pay is calculated not for each month, but for the working year. Therefore, such an employee is entitled to full paid leave.
Calculation of vacation for each month worked
Based on the minimum vacation duration of 28 days, you can easily calculate how many days are allotted for 1 month worked. Since there are 12 months in a year, you need to divide 28 by 12. The resulting value is 2.33. That is, for each month that an employee works at the enterprise, he is entitled to a little more than two days of vacation. For the first and second month - 5 days, for the first, second and third - 7, etc.
When calculating, the obtained values and the number of months worked are rounded:
- If a person worked for several full months and less than half of another month, round down.
- If he worked a certain number of full months and another 15 or more days, round up to the whole month.
So, for example, if you worked for 5 months and 10 days, then the number of vacation days is calculated as for 5 months. If you worked for 5 months and 16 days, these 16 days will be counted as a month and calculations will be made for 6 months worked. For every six months that an employee works, he is entitled to two weeks of vacation. No matter how many days you don’t use for rest this year, you will be able to rest the same number of days next year.
The calculation takes into account absenteeism, sick leave and other days on which the employee was not at work. Special programs are used for this. Therefore, if an employee was counting on one number of days, but was given a different amount of vacation pay, he probably forgot to take something into account. In order to make sure that the calculation is correct, you need to contact the accounting department or the human resources department.
Rest at your own expense and maternity leave
In each working year of an employee, the vacation that he took at his own expense is also taken into account. This period should not exceed 14 days. If he rested for a longer period of time at his own expense, the additional days will not be included in the calculation as worked.
Maternity leave is included in calculations as a month or more worked. However, after the birth of a child, if a woman takes leave to care for him, this period will not be included in the length of service. The exception is when a woman works part-time. Moreover, every month that she spent caring for and raising a child is considered as worked.
Vacation followed by dismissal
An employee who decides to quit has the right to take leave and write a letter of resignation immediately after it. At the same time, in addition to paying vacation pay, the employer is obliged to pay compensation for this period (that is, for 2 days, which are due for 1 month of work). In this case, the last 28 days are included in the length of service, and the date of dismissal must coincide with the last 28 days of vacation. In order to use all the rest days that an employee is entitled to before dismissal, you need to calculate how many of them have not yet been used. To do this, you need to divide 28 by the number of months worked and subtract the rest days that have already been used.
If an employee worked less than 10.5 months and decided to quit, the number of days for paid leave is calculated as follows: 28 must be multiplied by the number of months worked and divided by 12.
When can you take a vacation?
Not only those employees who have worked for six months can apply for it. Certain categories of workers have the right to temporary exemption from labor activity with retention of their job, even if they worked for a month, two or more. These include:
- pregnant women;
- employees who have not yet turned 18 years of age;
- employees who adopted a child under three months of age.
If an employee was employed only six months ago, he has the right to go on vacation not only for 14, but for the entire 28 days. However, in this case, the third and fourth weeks are paid in advance. If a person decides to resign within the next 6 months, two weeks' pay will be deducted from his wages.
Types of vacations
There are several types of temporary termination of execution job responsibilities. In addition to annual and maternity leave, employees also have the right to take additional rest, study or rest without pay.
Additional is provided to certain categories of workers, namely those who work in hazardous industries, have irregular working hours or are engaged in labor activities on the territory Far North. Vacation without pay can be arranged by writing a corresponding application. But this type of vacation is provided only by agreement of both parties (employee and employer). The basis for its registration is the birth of a child, marriage, death of a loved one. It is also provided to disabled people, working pensioners, and employees who are simultaneously receiving education.
Another type is educational recreation. It is provided for the duration of exams or other events related to the employee’s training. In addition to the application, you must also provide a certificate from a university or other educational institution.
How to apply
To go on temporary vacation, first of all, you need to determine specific dates. In most cases, they must be agreed upon with management in advance. You must write an application 14 days in advance and submit it to the HR department. Here, authorized employees must write an order addressed to the employee.
Since many people prefer to relax in the summer, companies usually create a vacation schedule, and each employee plans their free time based on it. Having a schedule has its benefits not only for company management, but also for employees. Indeed, in this case the likelihood of occurrence labor disputes. There is no need to discuss dates with management, there is no need to seek a compromise. In this case, the employee is confident that it is during this period of time that he will definitely be able to go on temporary leave. If there is a schedule, the manager is obliged to inform each employee about the approaching vacation date two weeks before it. The notification must be in writing. If the employer has not done this, the employee has every right to reschedule the date to any time convenient for him.
Management failure
If the boss refuses to take leave (this means annual paid leave), and you can’t come to an agreement with him, you need to write a complaint and submit it to the labor inspectorate (state or city). After accepting a complaint, authorized employees are usually asked to submit papers confirming the fact of management’s refusal. The application you submitted to the HR department should be used as such evidence.
If the employer refuses to accept your application, send it by mail. Better send it by registered mail with an inventory addressed to the employer. At the post office you will be given a “stub”, which will serve as proof that you sent the application to your boss. This may come in handy if the case goes to trial. Not only individual employees, but also the entire labor collective regardless of how many people want to book a vacation.
A competent answer to the question, how many days of vacation are due for each month worked, has great value both in terms of compliance labor rights employees and from a taxation point of view. The problems that arise in the process of calculating the duration of vacation are very numerous and cause heated discussions in the economic and legal community.
The calculation procedure in this case is significantly influenced by circumstances such as absenteeism, the use of leaves without pay and for childcare purposes, employees’ lack of permission to work due to intoxication, as well as positive results of medical examinations, TB checks, and psychiatric examinations.
Currently, professionals attach great importance to correctly calculating the number of vacation days during dismissal. Depending on their number, employees are accrued full or proportional compensation. The amount of personal income tax paid depends on the specifics of their calculation (by virtue of clause 3 of Article 217 of the Tax Code of the Russian Federation).
According to clause 2 of clause 1 of Article 238 of the Tax Code of the Russian Federation, days of unused vacation paid to resigning employees are not subject to UST taxation, which is regulated by letter No. 04-04-04/103 of the Russian Ministry of Finance dated September 17, 2003. At the same time, days of unused vacation paid according to applications of employees continuing to work in the organization are subject to standard UST taxation (in accordance with letter No. 03-05-02-04/13 of the Russian Ministry of Finance dated 02/08/2006). All these issues require a competent approach to calculating the duration of paid vacations.
How to calculate the number of vacation days
To answer the question of how to calculate the number of vacation days, you need to have an idea of the individual working year and personal vacation history. By virtue of Art. 122 of the Labor Code of the Russian Federation in the first year of employment, the right to use vacation arises after six months of continuous work of an employee with a particular employer. Moreover, by agreement of the parties, the provision of paid leave may take place before the expiration of this period.
Vacations for subsequent years of employment can be granted at any time during the working year according to the established schedule. Accordingly, each employee has an individual working year. In this case, the number of vacation days for the period worked is calculated taking into account the so-called vacation experience, which provides the right to vacation. If during the individual year there were periods to be excluded from the calculation of vacation experience, then the end of the individual working year is postponed.
- Time of actual work.
- The time when the employee did not work, but was retained workplace according to labor legislation, including periods:
- holidays;
- annual leave, payable;
- days off;
- rest time provided to employees in accordance with the Labor Code of the Russian Federation;
- unpaid rest periods (less than two calendar weeks during an individual working year);
- removal of employees from work due to inability to pass mandatory medical examinations not through their fault;
- forced absenteeism.
The following periods are not subject to inclusion in the vacation period:
- leaves granted to care for children until they reach the age specified by law;
- absence of an employee from the workplace without valid reasons (including suspension from work) labor functions on the basis of Art. 76 Labor Code of the Russian Federation);
- unpaid vacations lasting more than 2 calendar weeks.
It should be taken into account that the vacation record, which provides the right to additional annual vacations subject to payment as a result of the employee’s work in harmful conditions, only the period actually worked under the mentioned conditions is included.
The labor legislation of the Russian Federation does not provide for the possibility of providing annual paid leave in an incomplete amount proportional to the period worked. Thus, the annual basic paid leave must be provided in full (of the established duration, which, by virtue of Article 115 of the Labor Code of the Russian Federation, is 28 calendar days).
It should be taken into account that in the process of calculating the total duration of annual paid vacations, the summation of the main vacations with additional vacations is made, which is regulated by Art. 120 Labor Code of the Russian Federation.
To calculate vacation days for which compensation is due upon dismissal on the basis of Art. 127 of the Labor Code of the Russian Federation, the following algorithm is used:
- The vacation period for granting vacation is calculated. The calculation is carried out in full months for the entire period of the employee’s employment in the organization. Moreover, if there are less than 15 days in an incomplete month, they are not taken into account, and if there are more than 15, then the period must be rounded up to the whole month.
- The total number of vacation days due to the employee for the period worked in the organization is calculated.
- The total number of days of vacation actually granted to the employee for the entire period of work is calculated.
- The number of vacation days that were not used is calculated (the calculation is carried out by subtracting point 3 of this algorithm from point 2).
How many days of vacation are required for 1 month of work?
To determine how many days of vacation are due for 1 month of work, you should use one of the generally accepted methods. Its essence is as follows. In accordance with the methodology used, 2.33 days are accrued per month of work, which fall on the main paid leave. This value is obtained as follows: 28 days: 12 months = 2.33 days.
Thus, in accordance with the calculation using the mentioned method, the number of vacation days depending on the number of months worked will be:
- I. - 2.33
- II. - 4.66
- III. - 6.99
- IV. - 9.32
- V. - 11.65
- VI. - 13.98
- VII. - 16.31
- VIII. - 18.64
- IX. - 20.97
- X. - 23.30
- XI. - 28
- XII. - 28
This technique is easy to use and is justified by clause 29 of the current Rules, introduced by Decree No. 169 of the People's Commissariat of Labor of the USSR dated April 30, 1930.
Leave for persons working under a formal employment contract
Going through an official employment procedure automatically means that the employee will have absolutely all the rights that are guaranteed to him by current legislation. One of the most common and important such rights is, of course, the possibility of regularly taking paid leave. For persons who work on official employment contract, this right arises every year.
The opportunity to apply for the first vacation period after employment appears to a subordinate at the moment when his work experience in the new organization reaches the minimum mark of 6 months. However, if necessary, the vacation period can be issued much earlier, even in the first month of work. The main thing is that the employer does not have any objections in this regard.
- The accrual of rest days due to a subordinate occurs automatically during his work in the organization.
- In most cases, the working year period coincides with the normal calendar year.
- However, the calculation is always based on the working year. This is quite logical, because in most cases, employees do not get settled in the organization from the first day of the new year. Therefore, if we use calendar year- the correct calculation will be much more difficult to make.
How many vacation days does an employee get for each month worked?
With regard to calculating the exact number of vacation days that modern employees are entitled to, the current legislative norms have long established special formulas and schemes. In particular, all calculations are made based on the official value of 2.33 days. The fact is that this is exactly how many days of paid leave an employee is entitled to for each month of his work in the organization. Using the above value, calculating the required number of rest days is quite simple. It is only important to know the exact time period for which such a calculation will need to be carried out.
Special mention should be made of this important issue, as dividing the vacation period into several parts. This option often turns out to be very convenient for a large number of employees. By using it, they will be able to go on vacation at least twice in one year. However, here employers need to remember the main rule.
In particular, vacation sharing is indeed possible and is not a violation. The main thing is that one of the parts of the employee’s vacation period is at least 14 calendar days. As for the remaining days of rest, the employee can use them as he wishes. However, you still need to discuss this issue with the employer in order to avoid possible disputes and subsequent claims.
Sometimes the initiative to divide the vacation period comes not from the employee himself, but from his employer. This is understandable: some bosses do not like to let their subordinates go for a long time. This is why they prefer that employees take two vacations of 14 days each.
It should be noted that in the above situation there are no violations, however, before dividing the leave of his subordinate, the employer must always obtain consent to such actions from his employee. Otherwise, such actions of the boss may contradict current standards and violate the interests of the employee. Moreover, for unlawful division of vacation, the director of the organization may be subject to various disciplinary measures.
Determining the exact number of vacation days at the time of dismissal
The current labor legislation did not establish any special schemes or principles for determining the exact number of vacation days earned by an employee at the time of his dismissal. This means that in this case the employer must use standard calculation schemes that are also used in other situations. Here you need to be guided by the following principles:
- If an employee, at the time of his departure from the organization, had worked for at least 11 calendar months and had never taken vacation, this means that he will be entitled to full annual compensation for the unused vacation period.
- If the subordinate’s work time in this company has not yet reached the eleven-month mark, then the calculation of the required number of days of rest is made “after the fact.” That is, the actual number of vacation periods worked is taken as a basis.
- As for the calculation formula itself, the standard value is taken as a basis - 2.33 days. To establish the exact number of days, this amount is simply multiplied by the number of months worked. If an employee, for example, has already used certain number days of rest - which means it is deducted from the total amount of allotted vacation days.
- During immediate dismissal, the employee's available vacation days can be used by two different ways:
- for their intended purpose. This means that the employee will be able to take leave before leaving the organization for good. This option can be a great help if a subordinate does not want to work the standard two weeks before leaving;
- the employee receives monetary compensation for unused days. When choosing this option, the rest days available to the subordinate will be “transferred” to cash. The exact amount of compensation will depend on the number of vacation days, as well as on the average earnings of the subordinate. The entire amount of compensation must be paid to the employee on his last day of work.
One of the stages of dismissing an employee is determining the number of days of unused vacation. There is no particular need for rounding off vacation days upon dismissal. But if the manager decides to round off the days of vacation compensation upon dismissal, this should not be to the detriment of the employee. Otherwise, inspectors may regard this as an underestimation of the amount of payments and apply penalties to the company.
Before accrual to the employee compensation payments the number of days allotted for vacation is determined. To do this, calculate the total time worked. The starting point is the day the employee joins the enterprise. An employee has the right to apply for annual paid leave of 28 calendar days.
This right is granted to each employee after 11 months worked at the enterprise. You are allowed to take a vacation after 6 months, but the rest period will be shorter.
It should be noted that the Labor Code does not determine the procedure for establishing the number of rest days accumulated by an employee at the time of dismissal.
For these purposes, one should resort to the paragraphs of the Rules on regular and additional holidays in an article consistent with Labor legislation. Thus, a resigning employee who has worked at a certain enterprise for at least 11 months and has not exercised his right to leave is entitled to full compensation.
Calculation examples
In certain cases, when an employee has worked at the company for less than the established period, he also has a chance to receive full vacation compensation. In other conditions, compensation payments are provided commensurate with the number of months of experience giving the right to annual paid leave in a part-time working year.
Quantitative ratio in this situation should be presented in this form:
Mo:12 = Ku: Ko, where:
- Mo - number of months worked
- 12 - number of months of the year;
- Ku - the amount of compensated days at the time of dismissal;
- Ko - volume of the vacation period.
Hence, The vacation period is expressed by the following formula:
Ku = (Mo x Ko):12
For example, an employee interrupts labor Relations on your own initiative. The worked period of the current working year was 7 months, and the vacation period was 28 days. The number of paid vacation days is 28 days. x 7 months: 12 months = 16.33 days.
Another calculation option
Along with this, there is a slightly different position in relation to the algorithm for establishing the number of days of rest due to an employee at the time of dismissal. This approach is based on the explanations of the Federal Service for Labor and Employment of the Russian Federation, according to which each month worked by an employee will be equivalent to 2.33 days of vacation.
This coefficient is obtained by dividing the duration of vacation by the number of months in a year. The final number of vacation days is determined by multiplying this number by the vacation period.
Thus, federal Service on labor and employment recommends decomposing the specified formula into two separate arithmetic operations: divide the number of days of rest by the number of months in the year; multiply the resulting value by the number of months worked.
IN labor code nothing is said about the need to round compensation for unused vacation upon dismissal, so this right is left to the employer to choose from.
It is allowed to round off vacation days upon dismissal with a positive result for the employee. For example, the index 5.45 should be rounded to 6, ignoring arithmetic rules. To apply rounding in accounting enterprises, it is necessary to indicate this point in the local regulatory act.
If you round days according to arithmetic rules, the manager risks being fined a significant amount.
Duration of vacation
To find out how much compensation a resigning employee is entitled to, you need to know how much vacation the employee is entitled to per year. But there is a separate category of citizens who can count on a longer guaranteed vacation. This category includes:
Compensation payments are subject to personal income tax and accrued insurance premiums. Employees who have not worked for two weeks at the time of termination may be limited in receiving compensation.
You should not think about whether you need to round up compensation days for unused vacation. In case of evasion of payment, you may incur criminal, administrative and financial penalties.
If the employer fails to pay the payment upon dismissal, administrative, financial or criminal liability may arise. Monetary compensation is collected in the interests of the employee in parallel with the unissued wages and other debts.
The algorithm for calculating compensation payments is regulated by Article 236 Labor legislation. To determine the amount of compensation, the amount of debt must be multiplied by the number of days of delay and by 1/150 of the interest rate on basic transactions Central Bank RF, which is equal to 10%.
Code of administrative offenses liability for delay in payment is provided. The basis for liability may also be full or partial non-payment of the compensation amount due to the employee under the employment contract.
The task of administrative responsibility is to ensure compliance with the law and other legal norms, and the main purpose is the punitive function. Accordingly, the penalty for failure to pay a resigning employee will not be the return of compensation to the employee, but penalties or preventive action. If an official is repeatedly charged with similar offenses, he will be subject to a type of administrative punishment such as disqualification.
Criminal liability arises if an employer fails to pay wages to an employee. The key factors of the crime include:
- the guilt of the enterprise administration in allowing the delay;
- personal or selfish interest.
Selfish interest refers to an interest in obtaining property benefits by committing illegal actions. Criminal liability can only be borne by individual, for example, employer, company director, chief accountant. Taking into account the gravity of the acts committed, the employer or his confidant may be brought to material, administrative, or criminal liability.
If an employee resigns, the employer is legally obligated to pay him monetary compensation for unused vacation time. How to correctly calculate compensation upon dismissal? What features and pitfalls need to be taken into account when performing calculations? How not to deceive yourself and the employee? Let's consider the calculation procedure, and also give some examples of situations.
The process of calculating compensation upon dismissal comes down to several stages:
- determination of length of service giving the right to leave;
- determining the number of days of unused vacation depending on his length of service;
- determination of average daily earnings;
- calculation of the amount of compensation upon dismissal.
Periods to include:
- actual time worked by the employee;
- unpaid leave within 14 days;
- the time when an employee was suspended from performing his job duties due to failure to pass medical examination, and if the lack of a medical examination was not due to the fault of the employee himself;
- if the employee was not actually at the workplace, but this place was reserved for him (weekends, holidays, vacation time, sick leave, maternity leave, etc.);
- forced absence of an employee from the workplace through no fault of his own.
Periods to be excluded:
- Holiday to care for the child;
- unpaid leave for more than 14 days;
- absenteeism without good reason.
Separately, I would like to note that maternity leave is included in the length of vacation pay, but parental leave is not included.
The period that the employee worked at the enterprise from the date of his employment to the present moment is taken. This time period excludes the non-accountable periods listed above.
The resulting value must be expressed in full months. To do this, an incomplete month is rounded up to a full month if 15 days or more were worked in it, but if less than 15 days were worked, then it is not taken into account.
Example:
The employee has been working at the company for 8 months. and 5 days. In the ninth month, less than 15 days were worked, so we will not take it into account. The length of service will be 8 months.
The employee has been working at the company for 8 months. and 25 days. In the ninth month, more than 15 days were worked, so we round it up to the full. The length of service will be 9 months.
2. Calculation of unused vacation days
Based on the length of service calculated in the first paragraph, the vacation days due to the employee for the entire period are calculated.
To do this, follow a few simple steps:
- determine how many vacation days an employee is entitled to per month;
- multiply this value by the number of months of vacation experience;
- subtract the days already used.
Example:
The employee has been working at the company since May 20, 2014, and resigns on October 25, 2015. – 28 days. The employee managed to rest for 14 days during his work. How many days in advance must compensation be paid upon dismissal?
- per month the employee is entitled to 28/12 = 2.33 days of vacation;
- The vacation period is: from May 20, 2014 to May 19, 2015, 12 months worked, from May 20, 2015 to October 25, 2015 – 5 months. and 5 days. We do not take into account 5 days, that is, the total length of service is 12+5=17 months. Multiply 2.33 by 17 months. = 39.61 days of vacation are due to the employee for the entire period of work.
- since he has already taken 14 days off, they must be subtracted from the total number of vacation days: 39.61 – 14 = 25.61 days left for the employee.
Compensation upon dismissal must be paid for these 25.61 days.
3. Calculation of average daily earnings
To calculate compensation upon dismissal, you must determine the employee's average daily earnings. This earnings should be determined in the same way as in the normal calculation of vacation pay. This issue was discussed in detail.
In short, to calculate this value you need to take the last 12 cal. months before the month of dismissal. Determine the total earnings for this period and divide the resulting value by the number of days actually worked by employees during this time.
If all months are worked in full, then the total amount of payments to the employee for the year is divided by 12 and 29.3, this will be the average daily earnings.
If a month is not fully worked, then the average daily earnings will be determined by dividing payments for the year by the total number of days worked in the year, which will consist of the sum of days in fully worked months and days in incompletely worked months. The latter indicator is determined by dividing the actual days worked by the total number of days in the month, after which the resulting value must be multiplied by 29.3.
Example:
The employee worked for 11 months. completely, and in the 12th (December) I was sick for 5 days. There are 31 days in total in December, 26 of which were worked. The days worked in the last month are determined = 26/31 * 29.3 = 24.66 days.
Total number of days worked for the year = 11 * 29.4 + 24.66 = 348.06 days.
Average daily earnings = annual earnings / 348.06
4. Calculation of compensation upon dismissal
Amount of compensation upon dismissal = average daily earnings * number of days of unused vacation.
If an employee worked for 11 months, then he is entitled to compensation upon dismissal for 28 calendar days.
Example:
The employee began working at the company on 02/04/2013. He resigns on October 25, 2015. How to calculate the vacation pay compensation that will be paid to him upon dismissal?
His 1st working year: from 02/04/2013 to 02/02/2014, during which time he was on leave without pay for 21 days and on basic leave for 14 days.
Vacation days without pay exceeding 14 days are not taken into account, that is, 7 days are not taken into account. We will increase the employee’s 1st working year by these 7 days: from 02/04/2013 to 02/09/2014, the vacation pay is 12 full months.
2nd working year: from 02/09/2014 to 02/08/2015, the period was worked in full, was not on vacation, during this period the length of service was 12 full months.
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