Can vacations be compensated with money? The procedure for replacing unpaid leave with monetary compensation

Such replacement is not allowed only in the following cases:

• if the employee is pregnant;
• if the employee is under 18 years of age;
• if the employee is engaged in heavy work or work with harmful (dangerous) working conditions. (except for compensation for unused vacation upon dismissal).

In other cases, replacement is possible.

Amount of days

Compensation is given only to those employees whose vacation exceeds the usual 28 days. As a rule, these are those who are entitled to additional leave. For example, employees who have irregular working hours, or employees of the Far North (Article 116 of the Labor Code of the Russian Federation). Moreover, you can pay money only for the days of this additional rest.

EXAMPLE. HOW TO DETERMINE THE NUMBER OF DAYS

Since August 1, 2016, Petrova has been working as a manager at Delta JSC. During the period of work from August 1, 2016 to July 31, 2017, the employee was not on vacation. In August, she wrote a statement asking to replace part of the unused vacation with monetary compensation. The nature of Petrova’s work (irregular working hours) provides for additional leave (5 days), so the duration of annual leave is 33 calendar days (28 + 5).

Consequently, the Delta accountant will pay monetary compensation for 5 days (part of the annual paid leave that exceeds 28 calendar days).

Taxes

The amount paid in lieu of vacation will reduce the company’s tax profit on the basis of paragraph 8 of Article 255 of the Tax Code as labor costs that reduce tax profit, as “monetary compensation for unused vacation established by the labor legislation of the Russian Federation.”

With compensation for unused vacation, it is also necessary to pay insurance premiums for compulsory health insurance, compulsory health insurance and compulsory medical insurance, contributions for “injury” and personal income tax in the usual manner (Article 422 of the Tax Code of the Russian Federation, subparagraph 2, paragraph 1, article 20.2 of the Federal Law of July 24, 1998 . No. 125-FZ, clause 3 of article 217 of the Tax Code of the Russian Federation). Subparagraph 2 of paragraph 1 of Article 422 of the Tax Code of the Russian Federation states that compensation payments established by Russian legislation, including in connection with “the dismissal of employees, are not subject to insurance premiums, with the exception of:

• compensation for unused vacation;
• the amount of payments in the form of severance pay and average monthly earnings for the period of employment in the part exceeding in general three times the average monthly earnings or six times the average monthly earnings for workers dismissed from organizations located in the Far North;
• compensation to the manager, deputy managers and chief accountant of the organization in a portion exceeding three times the average monthly salary.”

If the employee continues to work, then such payment is also subject to taxation.

It is a common misconception that compensation for unused vacation can only be issued upon dismissal. In fact, an employee can also replace part of their vacation with money. The main thing is to act according to the rules of Article 126 of the Labor Code of the Russian Federation. Let's figure out when you can pay such compensation, what documents are needed for this and what to do with taxes.

When can vacation be replaced with compensation?

In practice, employees often ask to replace vacation with monetary compensation. And they themselves are ready to work without rest. Some even deliberately accumulate unused days, hoping to get money for them.

In such a situation, the accountant needs to remember the main thing: you can compensate with money only that part of the annual paid leave that is more than 28 calendar days. This is directly stated in Part 1 of Article 126 of the Labor Code of the Russian Federation. So if an employee is only entitled to the usual 28 days for each working year, it will not be possible to replace them with money. Unless, of course, the employee leaves the company (Article 127 of the Labor Code of the Russian Federation).

There is no need to pay compensation for accumulated standard vacation days from previous years. This is something that is often forgotten.

For example, a company employee is entitled to the usual 28 calendar days of vacation for each working year. Over the past year, he never took seven of them off. And this year he is entitled to another 28-day vacation.

It turns out that the employee can count on 35 days of rest in total. But this does not mean that seven days of excess can be replaced with compensation. After all, this is the remainder of a vacation of normal duration (28 calendar days). And you can’t compensate for it with money. This conclusion follows from Part 2 of Article 126 of the Labor Code of the Russian Federation.

But when an employee is legally entitled to additional paid or extended leave, it is possible to compensate with money the part that exceeds the standard 28 days.

Thus, employees with irregular working hours, in addition to the main vacation, have the right to an additional at least three calendar days. This is stated in Article 119 of the Labor Code of the Russian Federation. It is precisely these additional days that, at the request of the employee, can be replaced with money.

However, I emphasize: in any case, the decision is made by the employer. Replacing part of the vacation with compensation is the right, not the obligation of the company. So the employee can be refused. Representatives of Rostrud emphasize this in letter dated June 8, 2007 No. 1921-6. By the way, the courts are also on the side of the companies here. Examples of this are the rulings of the Supreme Court of the Republic of August 15, 2011 No. 33-4410/2011 and the regional court of May 17, 2012 in case No. 33-4594/2012.

And one more very important point. For some employees, the law prohibits replacing part of their vacation with monetary compensation (see table below). So, before issuing compensation, be sure to check whether your employee falls into such categories.

Which employees cannot replace vacation with monetary compensation?

Question - Is it possible to replace study leave with compensation?

No, replacing study leave with compensation is a violation of labor laws. Let me emphasize that only part of the annual paid leave can be replaced (Article 126 of the Labor Code of the Russian Federation). And study leave has nothing to do with it. This is an additional guarantee for those who combine work and study. So it cannot be replaced with money.

Also, keep in mind that for illegally replacing vacation with compensation, the labor inspectorate may fine the company under Article 5.27 of the Code of Administrative Offenses of the Russian Federation. Then you will have to pay from 30 thousand to 50 thousand rubles. It is even possible to suspend activities for up to 90 days.

In addition, there are sanctions for employees - from 1000 to 5000 rubles. And for a repeated violation, even disqualification for a period of one to three years is possible. So the consequences are very serious.

What documents need to be completed

To replace part of the annual paid leave with compensation, an employee application will be required. This is stated in Part 1 of Article 126 of the Labor Code of the Russian Federation.

Then, if the company agrees to pay the money, prepare a signed order to this effect. However, there is no unified form for such a document. So make it up as you please.

Please indicate your full name in the order. and the employee’s position, the number of days for which he will be paid compensation, as well as the period for which the person is entitled to vacation days. Refer to the employee's statement. After the order is signed by the manager, familiarize the employee with it against his signature.

Don’t forget to also include information about replacing part of your vacation with cash compensation in the employee’s personal card. To do this, fill out a separate line of section VIII of form No. T-2, approved by order of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

In column 1, write down which part of the vacation (main or additional) it was decided to replace with money. And in columns 5 and 6, make an entry: “...replacement of vacation with monetary compensation.” Fill out all other cells according to the general rules. And of course, provide the details of the order as a basis.

Finally, add replacement details to your vacation schedule. If the company uses standard form No. T-7, approved by Order No. 1 of the State Statistics Committee of Russia dated January 5, 2004, in column 10 you can write, for example, like this: “Additional paid leave of three calendar days has been replaced by monetary compensation based on Order No. 37 dated 06/18/2014.”

How to take compensation into account in expenses and whether it is necessary to pay personal income tax and contributions on it

I'll start with If the company issued compensation for vacation in compliance with labor laws, then it can be taken into account in labor costs. The basis for this will be paragraph 8 of Article 255 of the Tax Code of the Russian Federation.

The main thing is not to violate the general rule: compensation can be replaced only for that part of the vacation that is more than 28 calendar days for each annual vacation (including vacations from previous years). Then the company will easily write off compensation as expenses. Officials do not object to this approach. There are letters about this dated January 24, 2014 No. 03-03-07/2516 and dated November 1, 2013 No. 03-03-06/1/46713.

And if an employee is only entitled to standard 28 calendar days for each working year and the company agrees to replace them with monetary compensation, it cannot be written off as expenses. After all, by issuing money for vacation in such a situation, the company is breaking the law (Article 126 of the Labor Code of the Russian Federation). Representatives of the Russian Ministry of Finance emphasized this in a letter dated May 20, 2005 No. 03-03-01-02/2/90.

Question - Is the compensation the same as vacation pay?

Yes that's right. Rest days that are decided to be replaced with compensation are paid based on average earnings.

By the way, pay attention to one more thing. Sometimes employers establish additional holidays in collective agreements for certain categories of their employees. That is, such a vacation is just an initiative of the company, and not a requirement of the law.

Then it will not be possible to include compensation in expenses. This conclusion follows from paragraph 24 of Article 270 of the Tax Code of the Russian Federation. Look at the letters of the Ministry of Finance of Russia dated December 17, 2008 No. 03-03-06/1/689 and dated October 18, 2005 No. 03-03-04/1/284.

Well, now about personal income tax. The tax must be withheld and transferred to the budget according to the general rules. And there are no exceptions for compensation for vacation in the law. The financiers confirmed this in a letter dated March 13, 2006 No. 04-1-03/133.

In addition, the compensation will have to pay insurance premiums, including for injuries. This conclusion follows from subparagraph “and” of paragraph 2 of part 1 of article 9 of the Federal Law of July 24, 2009 No. 212-FZ and paragraph 13 of subparagraph 2 of paragraph 1 of article 20.2 of the Federal Law of July 24, 1998 No. 125-FZ.

Lecturer: Maria Stazhkova,
k.e. PhD, independent business coach in the field of accounting, tax accounting, tax optimization, planning

Valeria K. recently got a job as a personnel officer in a new company. The organization is reputable and is on friendly terms with the law. But then summer came, and Valeria discovered that there were problems in this company too. Happy holidays. Many workers have already accumulated two or even three vacations. Moreover, some have annual leave not even 28 days, but more - the collective agreement establishes additional leave for continuous work experience in the company. Valeria compiled a list of employees who had accumulated vacation time over the past years and went to management. Meanwhile, the chief engineer came to the director. Valeria briefly outlined the situation and offered to give everyone the accumulated vacation. But the director simply laughed, and the chief engineer categorically opposed it. He himself did not use all his vacation the year before last. When should he go for a walk? Either they will bring new equipment, or they will overwhelm you with orders. There is no time to relax and cool off - I spent two weeks with my family at sea, and then went back to work. So the vacations are piling up. The director thought about it and ordered everyone to be compensated for them. Valeria knows that not everything is so simple, but the director’s order must be followed. Yes, and it seems there is a way...

The situation where employees accrue vacation time is very common. Some people cannot imagine life without their favorite job and categorically refuse to rest. Some people are highly valued by management and will never agree to sign an application for even two weeks of vacation. And the employee himself doesn’t seem to mind “taking it with money.” It would seem, what is the problem, since both sides agree? But the law is against it, and the GIT really likes to check this particular “direction.”

Vacation: provided by law

The right to paid annual leave is guaranteed to all workers under an employment contract by the Constitution of the Russian Federation ( Art. 37). Following it, the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) states: “Paid leave must be provided to the employee annually” ( Art. 122).

Yes, the law provides the opportunity to reschedule vacations. But only in exceptional cases and without abuse ( table).

IT IS FORBIDDEN!

Transfer annual paid leave to the next working year for employees under the age of 18 and employees engaged in work with harmful and (or) dangerous working conditions

When is it possible to transfer unused vacation to another period? We present these cases in the table.

Please note that failure to provide annual paid leave for two consecutive years is prohibited! And even more so, it is forbidden to “accumulate” vacation over a longer period, regardless of who is the initiator of such accumulation.

The order of provision of annual paid leave is determined by the vacation schedule. This document is mandatory not only for the employer, but also for the employee.

Transferring vacation to another date

IT IS FORBIDDEN!

Do not provide vacation for two years in a row

Providing annual paid leave is the responsibility of the employer. The law is firmly committed to protecting the health of citizens, therefore, regardless of the wishes of the employer or employee, it limits the cases in which it is permissible to postpone vacation, and even more so to replace it with monetary compensation.

It is possible to replace vacation with money, regardless of whether it is primary or additional and for what period it is accumulated, without any restrictions in only one case - upon dismissal of an employee ( Art. 127 Labor Code of the Russian Federation) .

If the employee does not resign, then the possibility of replacing his paid leave with monetary compensation is very small. Thus, upon the written application of the employee, only part of the annual paid leave exceeding 28 calendar days can be replaced by monetary compensation. When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

Replacement of monetary compensation for vacation is not allowed:
pregnant women;
workers under the age of 18. Employees engaged in work with harmful and (or) dangerous working conditions are prohibited from replacing annual additional paid leave with money for work in appropriate conditions.

These prohibitions, of course, do not apply to cases of payment of monetary compensation for unused vacation upon dismissal of these employees. Because, in addition to the obligation to respect the right of workers to rest, the law contains strict requirements for payments upon dismissal.

Returning to our story, we note that, without resorting to any tricks, it is possible to legally replace only the accumulated additional paid leave of employees provided for continuous work experience in the company on the basis of a collective agreement. For the rest of the period, workers must rest, even if this rest for some workers lasts more than three months.

But if this option does not suit anyone, let's look for loopholes.

Or it could be like that...

Perhaps, in the situation under consideration, more than one way to solve the problem can be proposed.

Method 1

Since the Labor Code of the Russian Federation allows for the payment of compensation for all unused paid vacations upon dismissal of an employee, why not take advantage of this? If the employee himself is interested in receiving money, and not in rest, we think it will not be difficult to come to an agreement with him. True, there is a possibility that he will ask whether his length of service, which gives him the right to annual paid leave, will be interrupted. But is this a problem? Explain to the employee that the right to use vacation will arise within 6 months, which may be much faster than planned in the vacation schedule.

The employee may also be embarrassed that his continuous work experience in the company will be interrupted, for which, as in our case, additional paid leave is established. This is also easy to fix. Include a condition in the collective agreement according to which continuous work experience is maintained if the break in work for a given employer does not exceed, for example, 10 days.

It is possible that the employee may simply be afraid of being fired, fearing that, even with promises, you will not hire him back later. But this is also easy to resolve. Depending on the basis on which the employment contract will be terminated (at the initiative of the employee or by agreement of the parties), invite the employee, simultaneously with the resignation letter or agreement to terminate the employment contract (which, by the way, is preferable), to sign a new employment contract, handing it over copy to the employee. For the employee, this will be a guarantee that in the end he will not be left behind.

Method 2

You don’t have to resort to dismissing an employee. Provide the employee with the required vacation in the amount that has “accumulated” at the moment. And for this period, enter into a civil contract with him (for example, a contract or contract for the provision of services).

Just keep in mind: there is a risk that in the event of a dispute, the relationship established on the basis of this agreement will be recognized as an employment relationship. To minimize this risk, consider the following points when drawing up a contract:

1. The parties to such an agreement are not the employee and the employer, but the customer and the contractor.

2. The subject of the contract must be the result of the work, which will ultimately be paid. For a civil legal contract, the labor process (performing a labor function in a certain profession, specialty, qualification; job responsibilities) is not important.

3. The price of the work to be performed (and not the salary, tariff rate, wages) must be determined as payment under the contract. At the same time, do not tie its payment to the days of salary payment. If the contract does not provide for advance payment for the work performed or its individual stages, then you will have to pay the contractor the agreed price after the final delivery of the work, provided that the work is completed properly and on time, or with the customer’s consent ahead of schedule.

IN THE SAME TIME...

What about them?

The average vacation in the US is 10-12 days. It is regulated by a contract between the employer and employee. The length of vacation depends on whether it is a private or public company (private companies can set longer vacations at their discretion), on the position, length of work in the company, and the region of the United States.

From the results of a survey of Washington residents, it is clear that the majority of vacations take 2-3 weeks. In order for an employee of a medium or large American company to receive a 3-week vacation, he first needs to work for 5 years, and someone who has worked for the company for 15-20 years has already been “walking” for a month. Interestingly, company owners take less rest than their employees - an average of 6 working days a year. 13% of American companies do not pay vacation pay to their staff.

Surveys show that Americans, on the one hand, would like to have more rest, and on the other, their list of top priorities includes wages, health insurance, quality of work, and only then vacation. Most employees are willing to sacrifice vacation time to save their job.

It becomes clear why the special term “Vacation Deprivation Syndrome” first appeared in the USA. Why is the new syndrome dangerous?

The American Psychosomatic Society conducted a special study which concluded that taking annual leave reduces the risk of death by 20%. Dr. Stephen Lamm, author of The View, writes: “Being constantly stressed at work and unable to get enough rest is literally poisoning your body. "It is exposed to carcinogens that can cause heart attacks, strokes, cancer and other serious health problems." Diana Fussell, author of Work Until We Die, concluded that the life expectancy of an American workaholic is inferior to that of an alcohol abuser.

One of the signs of the above-mentioned syndrome is that even on vacation, people continue to work. This is facilitated by the presence of the Internet and mobile telephony almost anywhere in the world.

Management asks many employees to be in constant contact with the office, and some feel guilty for going on vacation. Fortunately, in other countries the situation with vacations is not so bad. Thus, the Swiss are entitled to rest 32 working days, the Danes, French, Austrians and Spaniards - 30, the Irish - 28, the Portuguese - 27, the Dutch - 25, the Belgians - 24, the Norwegians - 21, the Germans - 18 working days.

4. Do not tie work under a contract to any local acts of the organization (internal labor regulations, regulations on wages, staffing, etc.). There can be no talk of any labor discipline, work schedule, or disciplinary liability in this case. There will be no financial liability.

5. The contract must specify the deadline for completing the work. A contract, unlike a labor contract, is always urgent.

6. The results of the work must be documented in a document.

7. Work time under a contract should not be taken into account in the working time sheet.

If you prefer this option for solving the problem, we highly recommend reworking your approach to the job responsibilities of your employees. It is impossible to conclude such civil law contracts so that they completely duplicate labor contracts and at the same time be legal.

Using any of the above methods, it is important not to forget that vacation is given to the employee so that he can rest and regain his strength. Physical and mental rest is vital for a person. It is no coincidence that the minimum duration of annual basic paid leave is 28 days. As a rule, during the first week of vacation, the employee only has time to sleep and disconnect from all work matters, and only in the second week does he begin to fully rest. A rested and re-energized employee will work much more efficiently.

Without rest, a person who is sick for work can very quickly turn into a person who is sick because of work, and then the monetary compensation for unused vacation is hardly enough to restore health.

The fact that when an employee is dismissed for unspent vacation days, he is entitled to monetary compensation is probably known to every accountant. Is it possible to pay compensation to a working employee who did not take all the vacation days allotted for the year? provides such an opportunity, but in strictly limited cases. In addition, for you as an employer, replacing vacation with compensation for a working employee is a right, not an obligation. That is, if you wish, you can refuse to pay the employee money instead of vacation. And if you still agree to such a replacement, read the article for details on how to arrange it correctly.

Note.Replacing vacation with monetary compensation is the employer’s right, not his obligation.

Who should not replace vacation with monetary compensation?

The employee asks you to replace the vacation with monetary compensation. And before you grant his request, you should make sure whether the employee is one of the people for whom you cannot replace vacation with money. The list of such persons is provided for in Part 3 of Article 126 of the Tax Code of the Russian Federation. These include:

Pregnant women;

Workers under 18 years of age;

Workers exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant (see also letter of the Ministry of Labor of Russia dated March 26, 2014 N 13-7/B-234);

Workers engaged in work with harmful and (or) dangerous working conditions. There is, however, an exception here.

So, you can replace with monetary compensation part of the annual additional paid leave for Chernobyl victims that exceeds its minimum duration - 7 calendar days (parts 2 and 4).

Accordingly, if your employee does not fall into any of the specified categories of persons, then you can replace his vacation with monetary compensation.

How many vacation days can be replaced

The maximum number of vacation days that can be replaced by compensation is not established by law. However, you also do not have the right to replace the employee’s entire vacation with monetary compensation.

The provisions of Part 1 of Article 126 of the Labor Code of the Russian Federation allow compensation to be paid only for that part of the vacation that exceeds 28 calendar days.

Consequently, your employees can count on a replacement only if you provide them with extended basic or additional leave (Articles 115 and 116 of the Labor Code of the Russian Federation). In the table on p. 28 we have listed the categories of employees who are entitled by law to extended basic and additional leave.

List of employees who are required to be granted extended basic or additional leave

But even if your employees do not fall under the specified list, you can set additional leave for them yourself (Part 2 of Article 116 of the Labor Code of the Russian Federation). In this case, be sure to specify in the collective agreement or other local regulatory act the procedure and conditions for granting such leave.

Note.The employer has the right, at its discretion, to provide employees with additional leave.

If in one working year an employee did not take part of the vacation of 28 calendar days and transferred them to the next year, he will not be able to replace these days with compensation. Only vacation days exceeding 28 calendar days of the main vacation each year are subject to cash replacement.

Example 1. M.E. Sobolev has been working at AvtoLombard LLC since May 14, 2012. According to the employment contract, he has the right to paid leave of 28 calendar days for each working year. In the first working year (from 05/14/2012 to 05/13/2013) he used 21 calendar days of vacation. In the second working year (from 05/14/2013 to 05/13/2014) - 26 calendar days. For two working years, out of 56 calendar days (28 calendar days + 28 calendar days), he used only 47 days. 9 calendar days remain unused. Can he replace these unused days with monetary compensation? No, in this case the employee does not have the right to replace part of the vacation with monetary compensation. Since the duration of his annual paid leave is only 28 calendar days. And only days exceeding the specified limit for each year of operation are subject to replacement.

How to replace vacation with cash compensation

To replace part of your vacation with monetary compensation, you need:

Receive a statement from the employee with a corresponding request;

Issue an order;

Make an entry about replacing vacation with compensation in the employee’s personal card;

Enter information about vacation replacement into the vacation schedule.

Let's look at these steps in more detail.

Step 1. Employee application. Replacement of vacation with monetary compensation is carried out at the request of the employee, which he reflects in his application. It should be written to the head of the company (individual entrepreneur). The law does not establish the form of such an application, so the employee can draw it up in any form.

Step 2. Employer's order. If you agree to replace part of the employee’s vacation with monetary compensation, you must issue an appropriate order.

There is also no unified form for such an order. Therefore, compose it in any form. Indicate in it the full name and position of the employee, the number of days of the billing period and vacation to be replaced by monetary compensation. Also reflect the basis for issuing this order - details of the employee’s application.

Step 3. Employee’s personal card. After completing the order, information about replacing part of the paid leave with monetary compensation must be reflected in the employee’s personal card. This information is reflected in section VIII "Vacation".

Step 4. Vacation schedule. You should also reflect information about replacing part of the vacation with monetary compensation in the vacation schedule. To do this, make an entry in column 10 “Note”. Be sure to indicate the number of vacation days to be replaced and the details of the order. The entry in column 10 of the vacation schedule may be as follows: “Part of the additional paid leave in the amount of 4 (four) calendar days was replaced by monetary compensation based on order No. 136-ls dated July 29, 2014.”

How to calculate compensation

To determine the amount of monetary compensation to be paid to the employee, you need to multiply the average daily earnings by the number of days replaced by compensation.

Note.The amount of monetary compensation paid in lieu of vacation is calculated based on the employee’s average daily earnings.

The average daily earnings in this case are calculated according to the rules for calculating vacation pay. They are established by article and paragraph 10 of the Regulations on the specifics of the procedure for calculating average wages (approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).

So, if the employee worked the entire billing period, you should divide the actual amount of the employee’s salary for this billing period by 12 and by 29.3 (the average monthly number of calendar days).

If one or more months of the billing period are not fully worked out or there were excluded periods, then the average daily earnings are calculated as follows. First, determine the number of calendar days in fully worked calendar months:

KDMP = KMP x 29.3,

where KDMP is the number of calendar days in fully worked months of the billing period;

KMP - number of fully worked months;

29.3 - average monthly number of calendar days.

KDMN = 29.3: KKDMN x CODE,

where KDMN is the number of calendar days in a month that is not fully worked;

KKDMN - the number of calendar days of the month that is not fully worked;

CODE - the number of calendar days worked in a given month.

If there are several months that are not fully worked, then the number of calendar days must be determined for each of them. And then add up the results.

Then calculate the total number of calendar days taken into account when determining average earnings:

KKD = KDMP + KDMN,

where KKD is the number of calendar days taken into account when calculating average earnings.

Finally, determine your average daily earnings:

NW = NE: KKD,

where SZ is the average daily earnings;

SV - the amount of payments accrued to the employee in the billing period.

Example 2. An employee of AvtoLombard LLC, O.V. According to the employment contract, Simonova is entitled to additional leave of 4 calendar days. She appealed to the employer with a request to replace this part of the vacation with monetary compensation. The billing period is from August 1, 2013 to July 31, 2014. From April 1 to April 28, 2014 O.V. Simonova was on regular vacation for 28 calendar days. And in January 2014, the employee was sick for 10 days. The remaining months of the billing period have been fully worked out.

Over the last 12 calendar months, payments in favor of the employee amounted to 420,500 rubles, of which vacation pay was 29,800 rubles. and payments for a certificate of incapacity for work - 9200 rubles. We will calculate the amount of compensation that the employee is entitled to.

First, we determine the number of calendar days in fully worked months. It is 234 days. (8 months x 29.3 days). Now let's calculate the number of days in months not fully worked. For January 2014 it is equal to 19.85 days. (29.3 days: 31 days x 21 days), for April 2014 - 1.95 days. (29.3 days: 30 days x 2 days). The total number of days in months not fully worked was 21.8 days. (19.85 days + 1.95 days).

The number of calendar days taken into account when calculating average earnings is 255.8 days. (234 days + 21.8 days). The payments taken into account do not include average earnings maintained during vacation and temporary disability benefits. Therefore, vacation pay must be calculated based on RUB 381,500. (420,500 rubles - 29,800 rubles - 9,200 rubles). The average daily earnings for calculating compensation will be 1,491.4 rubles. (RUB 381,500: 255.8 days). The amount of compensation to be paid to O.V. Simonova, will be 5965.6 rubles. (RUB 1,264.04 x 4 days).

Please note that labor legislation does not define the period within which you must pay compensation to the employee in lieu of vacation. But we recommend doing this on the next day established for payment of wages.

Note. FAQ

Is it possible to replace study leave with monetary compensation?

No. Labor legislation allows only part of the annual paid leave to be replaced with monetary compensation (Articles 126 and 127 of the Labor Code of the Russian Federation). And your employee’s study leave is not related to annual paid leave. It is considered additional targeted leave related to training (Articles 173-176 of the Labor Code of the Russian Federation).

What will happen to us if we replace an employee’s vacation not exceeding 28 calendar days with money?

In this case, you may be held accountable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation for violating labor laws. The head of the company faces a fine of 1,000 to 5,000 rubles. For a repeated violation, he may be disqualified for a period of one to three years. And an organization can be fined in the amount of 30,000 to 50,000 rubles, and an entrepreneur - from 1,000 to 5,000 rubles. Instead of a fine, the organization and businessman may face suspension of activities for up to 90 days. True, this violation can only be detected if the labor inspectorate comes to you with an inspection.

What taxes and contributions should be charged on the compensation paid?

As a general rule, compensation paid in lieu of vacation is the employee’s income. It is not mentioned in the list of payments not subject to personal income tax (Article 217 of the Tax Code of the Russian Federation). Accordingly, from its amount you need to calculate, withhold and transfer personal income tax to the budget. About this - letter of the Federal Tax Service of Russia dated March 13, 2006 N 04-1-03/133. Personal income tax should be paid to the budget on the day you receive money from the bank to pay compensation or on the day it is transferred to the employee’s bank account.

Also, the amount of compensation paid to the employee is subject to contributions to the Pension Fund, Social Insurance Fund and Federal Compulsory Medical Insurance Fund. This is directly provided for by subparagraph “and” of paragraph 2 of part 1 of article 9 of the Federal Law of July 24, 2009 N 212-FZ and paragraph 13 of subparagraph 2 of paragraph 1 of article 20.2 of the Federal Law of July 24, 2009 N 125-FZ. This conclusion is also confirmed by the regulatory authorities (letter of the Federal Insurance Service of the Russian Federation dated November 17, 2011 N 14-03-11/08-13985).

Replacing vacation with money is possible in two cases. The first is at the request of a working employee (according to special rules). The second is when an employee is dismissed if he has unused vacation days.

The employer is obliged to provide the employee with paid leave annually (Article 114, Article 122 of the Labor Code of the Russian Federation). Its duration cannot be less than 28 calendar days (Article 115 of the Labor Code of the Russian Federation). This is the required minimum. For certain categories of employees, the main leave may be extended (Article 115 of the Labor Code of the Russian Federation). In addition to the main leave, people working in a special regime have the right to additional paid leave (Article 116 of the Labor Code of the Russian Federation). These points should be taken into account when the situation arises of replacing vacation with money.

Replacement of annual leave

The general procedure for replacing annual leave with money is established by Article 126 of the Labor Code of the Russian Federation.

Money can be used to replace a portion of each annual paid leave exceeding 28 calendar days. And such an excess is possible only if the employee has the right to extended basic or additional leave.

Money can be used to replace a portion of each annual paid leave exceeding 28 calendar days. And such an excess is possible only if the employee has the right to extended basic or additional leave

In other words: if an employee is not entitled to extended or additional leave, and he used only 20 days of the main leave out of 28, then he has no choice.

For the remaining 8 days, he can only walk for a while - he will not be paid any money for these days.

Example 1

An employee's paid leave is 40 calendar days (28 calendar days - main leave and 12 calendar days - additional).

The employee took 28 days of basic leave and 2 days of additional leave - a total of 30 days. In addition, he has 7 days of additional leave left for last year.

Upon written application from the employee, he can be paid money for:

– 10 days (12 days – 2 days) of additional leave for the current year;

– 7 days of additional vacation for the previous year.

But such a replacement also has limitations. Thus, it is impossible to replace not only basic, but also additional leave for pregnant women and employees under eighteen years of age with monetary compensation. It is also impossible to pay money in lieu of additional leave to those who are employed in jobs with harmful or dangerous working conditions. This leave should only be granted “in kind”.

Not only basic, but also additional leave for pregnant women and employees under eighteen years of age cannot be replaced with monetary compensation.

Replacing unused vacation with monetary compensation to a working employee is not the responsibility of the company (Article 126 of the Labor Code of the Russian Federation, paragraph 7 of the letter of the Ministry of Labor of Russia dated April 25, 2002 No. 966-10). Therefore, the legislation does not have clear deadlines for its payment - they are determined by agreement between the employee and the administration. The employee only needs to write a statement in any form.

Most often, employees who have unused additional or extended vacations for previous years ask to pay compensation when going on their next vacation.

Example 2

Volna LLC technician P.S. Berezhnoy has been working in the organization since September 1, 2006. The employment contract provides him with basic leave of 28 calendar days and additional leave for multi-shift work of 5 calendar days.

The total duration of Berezhny's annual paid leave is 33 calendar days (28 + 5). Of the vacation days allotted to him for the working period from September 1, 2006 to August 31, 2007, he used only 14. When applying for vacation for the next working period (September 1, 2007 to August 31, 2008), he wrote a statement asking him to replace the unused days of the previous vacation with cash compensation. There can be only 5 such days - unused additional leave.

General Director of Volna LLC
Matrosova E.P.
from a production technician
Berezhny P.S.

STATEMENT

Please provide me with the next annual paid leave for the working period from September 1, 2007 to August 31, 2008 from May 12, 2008 for 33 calendar days. I request that part of the unused additional leave for the working period from September 1, 2006 to August 31, 2007 (five calendar days) be replaced with monetary compensation.

The employee received compensation when paying vacation pay.

The employee must use the remaining 14 days of last year's main unused leave before August 31, 2008 - according to the rules for transferring annual leave (Article 124 of the Labor Code of the Russian Federation).

If an employee decides to replace extended or additional leave of the current year (or part of it) with money, he also writes a statement in any form. This can be done, for example, when going on another vacation or upon returning from it.

Full payment - only upon dismissal

If a person quits, the employer is obliged to pay him monetary compensation for all unused vacations (regular and additional) (Article 127 of the Labor Code of the Russian Federation). This obligation does not depend on the reason for dismissal (the employee’s own desire, staff reduction, change of owner or transfer to another employer, etc.). The money must be paid on the day the employee is dismissed - his last working day.

Please note: only employees who have worked for the company for at least half a month have the right to compensation upon dismissal.

Only employees who have worked for the company for at least half a month have the right to compensation upon dismissal.

The basis for the payment is the dismissal order in Form No. T-8 and the Calculation Note upon termination (termination) of an employment contract with an employee (dismissal) in Form No. T-61 (forms approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1) .

Example 3

Let's use the data from Example 2.

The HR employee drew up a dismissal order and filled out the front side of the calculation note (the back side is filled out by the accounting department). The note will indicate the unused part of the vacation by the Berezhny technician for the working period from September 1, 2006 to August 31, 2007 in the amount of 14 calendar days.

Please note: those who work under civil contracts are not entitled to compensation for unused vacation, since such employees are not entitled to annual leave.

OUR HELP

If a company does not pay an employee compensation for unused vacation, the labor inspectorate may hold the company administratively liable. Company officials (for example, a manager) may be fined from 1,000 to 5,000 rubles. The company itself - in the amount of 30,000 to 50,000 rubles. (Article 5. 27 of the Code of Administrative Offenses of the Russian Federation).

Labor inspectors may find out about violations during an inspection. In addition, the employee has the right to contact the labor inspectorate himself. She will demand that the organization pay compensation to the employee, and if this requirement is not met, she will go to court.

It must be said that the obligation to pay compensation upon dismissal arises only when it comes to termination of the employment contract (dismissal). Therefore, compensation is not due if an employee, say, is transferred from one separate division of the company to another. With such a transfer, the employee is not fired, but only transferred to a new duty station (but within the same organization).

There is no need to pay compensation even if the person’s transfer is related to the reorganization of the company. After the reorganization, the company’s labor relations with employees do not terminate (Article 75 of the Labor Code of the Russian Federation). That is, employees are considered to continue working in the same organization.

Note: before dismissal, a person may decide not to receive money, but to play it all out

all unused (main and additional) paid vacations. To do this, he must write a corresponding application. And the day of dismissal will be the last day of vacation. The employee will receive the money three days before the start of the vacation. However, it will not be possible to take the time off if the employee is fired for guilty actions.

How to get money without quitting

If a valuable employee has accumulated vacation days and does not intend to resign, you can, without breaking the law, replace the days of unused vacation with money for him.

For example, fire him and hire him, say, a week later. Upon dismissal, he will receive all the money due. As for his quick return to the organization,

then this is an internal matter of the employer. There are no restrictions in this regard either in the Labor or Tax Code of the Russian Federation.

But if necessary, you can explain the reason for such actions. For example, they didn’t find a worthy replacement for a person who quit, but he couldn’t get a new job and decided to return.

Another non-prohibited method is to send the employee on vacation on weekends (Saturday and Sunday) until he completes his unused vacation days. After all, periods that fall on weekends are included in the number of calendar days of vacation and are paid. This can be done according to the rules for dividing vacation into parts (Article 125 of the Labor Code of the Russian Federation). But this can only be done when at least one of the parts of the divided vacation was at least 14 calendar days.