Simple on the fault of the employer: when the causes are needed (Vishnepolskaya I.). Simple: design features

Hello! No, the employee should not work during idleness, since it is a simple temporary suspension of work for the reasons for an economic, technological, technical or organizational nature (Article 72.2 of the Labor Code of the Russian Federation). Otherwise, the employee must accrue wages. Read the advice. Question: The organization had the need to attract an employee during forced inactivity to work (several hours a day). How to make it right? Answer: In accordance with Part Third Art. 72.2 TK RF under the displacement is understood as a temporary suspension of work for the reasons for an economic, technological, technical or organizational nature. In the sense of the specified norm, it is a temporary measure used by the parties to labor relations in the event of the causes that make it impossible to continue the exercise by the employee of his employment function (see, for example, the cassation definition of SK on civil cases of the Yaroslavl Regional Court in case No. 33-739 (extraction) ), Decision of the Soviet District Court of Astrakhan Astrakhan Region dated 07.10.2013 (Extraction), the decision of the Glazovsky District Court of the Udmurt Republic dated 16.05.2014 in case No. 2-720 / 2014). And since the time period of recreation time is not, during this period, employees must be in working hours at their workplaces (the cassation definition of the Moscow City Court dated 04.26.2011 No. 33-12337 / 11, the appellate definition of SK on civil cases of the Tomsk Regional Court of Tomsk Region from 11/29/2013 in case number 33-3583 / 2013). Thus, during downtime, the employee is deprived of the opportunity to fulfill his labor duties. If the employee is still performing his labor duties at its working time (even if the time of work is fulfilled several hours of the total duration of the working day (shift)), it's a simple, in our opinion, cannot go. In this case, the employer should be canceled simple * (1). If it is planned to further attract an employee to work only a few hours a day, for example, for three hours instead of the eight hours stipulated by the labor contract, in this case, the Labor Code of the Russian Federation allows you to establish an employee of the regime of incomplete working time, namely, a part-time regime. As a general rule, part-time (shift) or an incomplete working week, both when applying for work, and subsequently establishes under the agreement between the employee and the employer (part of the first Art. 93 of the Labor Code of the Russian Federation). Unilaterally, the employer may establish an incomplete working time regime only in order to preserve jobs when changing organizational or technological conditions of labor (changes in the technique and production technology, structural reorganization of production, other reasons), if such changes may entail mass dismissal of employees ( Part Fifth Art. 74 TK RF). Only under such circumstances, the employer without obtaining the consent of employees has the right to introduce a part-time work regime (change) and (or) part-time work week. Such a measure is always temporary - incomplete working time mode cannot be introduced for more than 6 months. If the reasons specified in Art. 74 of the Labor Code of the Russian Federation, in the case under consideration, there are no incomplete working time it can be established only by agreement of the parties. Parties will need to be issued an additional agreement to the employment contract (Art. 72 of the Labor Code of the Russian Federation), in which a new work will be enshrined: the duration of an incomplete working day, the start time and end of daily work, the time of providing a break for recreation and nutrition and its specific duration ( Art. 100 of the Labor Code of the Russian Federation). The parties should also specify the period during which part-time time will operate. In conclusion, we note that, regardless of whether incomplete working time was established by agreement of the parties or on the initiative of the employer, according to part of the second Art. 93 of the Labor Code of the Russian Federation, the work of the worker's work during work under conditions of incomplete working time is produced in proportion to the time spent or depending on the work performed by them (a letter of the Federal Service for Labor and Employment dated 08.06.2007 No. 1619-6). The answer has prepared: an expert of the legal consulting service guarantor Athler Ivan Response Quality Control: Reviewer of Legal Consulting Services Garant Komarova Victoria

Irina Holchekova

Hello! For a simple, which arose due to the fault of the employer, the latter is obliged to pay an employee at least 2/3 of its average earnings (part 1 of Art. 157 of the Labor Code of the Russian Federation). With any duration of downtime (a few hours or several full working days), payment is made on the basis of the average daytime earnings of the employee. The amount of payment is determined by multiplying the average daytime earnings on the number of working days of downtime, subject to payment (clause 9 of the average earnings). If the duration of idle less than one working day, the value of the average daytime earnings is divided into the number of working hours in shift and multiplied by idle time (in hours). Simple for reasons that do not depend on the employee or from the employer is paid in the amount of at least 2/3 of the tariff rate or salary (occasional salary), calculated in proportion to idle time. This is set in part 2 tbsp. 157 TK RF. It means that the calculation does not take into account various surcharges and surcharges on tariff rates and official salary (for example, for long service, professional skills, leadership of the brigade, work at night), premiums, remuneration and other payments taken into account when determining the average earnings. In other words, the amount of charges in this case will be less than the amount paid for the downtime arising from the fault of the employer. During downtime, enterprises are required to work and be in the workplace. A prerequisite for paying idle is a requirement that its beginning and ending is fixed by the employer. For accounting for working hours, employees and monitoring of compliance with the established labor regime uses the working hours accounting tab (Form No. T-12 and No. T-13). For daily accounting of working hours, two lines are specifically allocated in the table. In the case of forced downtime, one line indicates the code of forced downtime - "VP", and on the other - the number of hours. The downtime records in the accounting tab are made on the basis of an internal document in which the fact of idle is fixed by the official officer. In addition, the head of the enterprise is published an order of the beginning and duration of forced downtime and its payment.

Forced simple position of the employer is the suspension of the employee's work for a certain period of time caused by the error of its boss.

This measure is necessary to preserve the workplace of the citizen and the establishment of production. At the same time, a simple causes a lot of questions from workers, the answers to which can be found in this article.

Regulation on the TK RF

In accordance with Art. 72, clause 2 of the Labor Code of the Russian Federation, the reason for the downtime may be the problems of a technological, technical, organizational or economic plan. Also in this article is fixed by the determination of this concept.

The possible duration of idle is not enshrined in the legislation, which gives the right to the employer to unlimited extend the work delay.

The article establishes that either employer or employee may be to the suspension of work. The law also admits situations in which suspension does not depend on the parties to labor relations.

Payment for the simple fault of the employer is regulated by Part 1 of Art. 157 TK RF. It consistent with which the employee's salary is calculated during this period.

What can this happen?

In most cases, a forced delay occurs due to the fault of the employer, namely because of its negligent, irresponsible relationship. As mentioned above, there are several reasons causing a forced suspension of work:

Technological. The foundations of this kind are associated with a sharp change in production. For example, the introduction of new methods of work that employees are not familiar with. In such cases, a simple associated personnel is associated. Responsibility for this is the leadership.
Technical. This type includes breakdown or modernization of equipment. Here you can wines as an employer and an employee. The latter in the event of a breakdown of any technique will be difficult to prove its own innocence.
Organizational. These problems are associated with a change in the organization of production, for example, separation or union of departments. The fault of the employer here is easy to prove, since it is he who decides on the change in the structure of the enterprise.
Economic. Such reasons include financial crises, lack of material resources and raw materials. Prove the guilt of the head in such cases is sufficiently difficult, as such circumstances do not depend on the head of production. On the other hand, Russian legislation recognizes that these factors relate to the entrepreneurial risks of the employer, which means it is responsible for them.

The legislation omitted the causes of the delay as a result of force majeure circumstances, which neither the employee nor the leadership can affect. Such factors include natural disasters and other catastrophes.

Given this data, we can conclude that mostly the employer is guilty of forced downtime.

Process design

In case the employee of the fault of the employer cannot continue its work, it is obliged to immediately inform it or the chief himself, or the person who replaces it. In the Labor Code of the Russian Federation there are no compulsory notification requirements. An employee can report simple both oral and writing. The main thing is to clarify the time of the beginning of the suspension of the activity and the reason.

The designer should do the employer himself. To do this, he is obliged to publish an order in which:

date and time of the beginning and end of the suspension of work;
Full name and position of workers whose work is suspended;
staff salary for this period;
a person who is guilty of the situation.

The employer is responsible for familiarizing its employees with this order.

Some nuances of suspending activities are considered on the following video:

Responsibilities of the employer

If a simple occurred about the fault of the head, then he has a number of commitments to the employee who is obliged to fulfill:

First, he must take responsibility for the cause of the delay, as well as arrange an order that will be in accordance with the Labor Code of the Russian Federation.
Secondly, the employer is obliged to take all means and measures to stop idle.
Thirdly, he must provide an employee with the opportunity to fulfill his labor duties and receive wages for them. If it is impossible, it is obliged to pay the entire period of suspension of work in accordance with the norms of the TC.

It is worth noting that all the actions of the employer must comply with the norms of the Labor Code of the Russian Federation. With their violation, the employee may apply for help in the relevant authorities.

Nuances of payment

Payment of idle depends primarily on what caused such a situation. In the event of the employer's guilt, salary for the period of suspension should be no less than 2/3 of the employee's average salary.

It is considered by dividing the sum of all earnings for the entire period of work in days. Next, this amount is multiplied by the number of days of downtime. 2/3 from the resulting figures is paid to the employee.

Also, the salary for this period can be paid in accordance with the internal charter of the enterprise, if any.

What if the employer does not pay the idle period?

There are often cases of deception by leadership. For example, in order not to pay for the suspension period, the boss may not recognize his guilt or force an employee to take leave, which will not be paid for certain reasons.

Unpaid simple leader's fault is a violation of the Labor Code of the Russian Federation. An employee can safely contact the prosecutor's office or in the labor inspection. If during the state audit, violations of the legislation from the employer will be revealed, then it will be presented with claims, mandatory execution.

If the employer did not pay the salary, the employee has the right to apply to the court with the requirement to pay simple for three months.

Government agencies can attract a guide to administrative responsibility, as well as recover penalty in the amount of 1000 to 50 000 rubles. Also, government agencies can deprive the individual of the right to engage in entrepreneurial activities up to three years.

In addition to the salary itself, the employee has the right to compensation for moral damage from the employer. To do this, he needs to submit an appropriate lawsuit. The amount of monetary compensation will depend on the desire of the employee itself and on the norms of the legislation of the Russian Federation.

What should employee do while idle?

This period is not considered a vacation, so the employee must be ready to begin his official duties. On the other hand, he does not always need to be at the workplace due to different circumstances.

The worker and employer must discuss the moment in advance. If there is no need, the boss has the right to allow its employee not to visit the workplace. However, this should be decorated legally and must be fixed in an order of simple. Otherwise, the fisosal of the workplace may be regarded as a walk.

It is worth noting that the employers are often used by the legal illiteracy of their workers. For example, the bosses can allow the employee not to attend the place of its activities in oral form, without consolidating this fact in the order. As a result, the ingredients will be regarded as a walk than the employer and will use not paying the salary. The same can be said about the proposal to take a unpaid leave.

The employee may be invited to translate into another department or another position and work there. Such a measure is the most progressive.

However, it is very difficult to embody it into life, since this company should have free places that would correspond to the profession of the employee.

Translation can be made without the consent of the person, only if the period of downtime will take no more than a month, and the qualifications of the new position will be equal to the qualifications of the main place of work. In all other cases, the consent of the employee is required. Maximum transfer period - 1 year, after which the head is obliged to either return the worker to the old post, or to officially fix on the new one. The salary in a temporary post should not be below the average earnings of a citizen in a permanent place.

Is hospital paid?

In accordance with the legislation of the Russian Federation, temporary disability is paid if this state has come before the start of the delay. The hospital will not be paid if the period of disability only affects the time of the forced stop of work.

The manual in this period is paid in the amount of 2/3 from the standard one.

In case the disease occurred during the downtime, but ended after, the employee pays the allowance only to the years after the end of the forced suspension of activities.

Hello Vika!

In accordance with Art. 106 and Article 107 of the Labor Code of the Russian Federation the rest time is the time during which the employee is free from the execution of labor duties and which it can use at its discretion. Views time of relaxation are: breaks during the working day (shift); Daily (intermediary) rest; Weekends (weekly continuous rest); non-working holidays; vacation.

That is, idle time does not apply to Leisure Leisure. Therefore, although during downtime, employees do not fulfill their employment responsibilities, they are obliged to attend workplaces, except in cases established by the employer.

T. in the way, during downtime, employees are not exempt from their employment duties.

FROMobfore Article 157 of the Labor Code of the Russian Federation, idle time (Article 72.2 of this Code) due to the fault of the employer is paid in the amount of at least two thirds of the employee's average wage.

That is, idle time can be paid in the amount of 2/3 of the average salary. At the same time, as an employee was indicated not exempt from his work duties.

Therefore, the head has the right at any time to demand from the employee executing his work duties.

However, if the employee is on vacation during an enterprise downtime, then the following rules are valid.

According to Art. 123 Tk RF, the order of granting paid leave is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the election body of the primary trade union organization no later than two weeks before the calendar year in accordance with the procedure established by Article 372 of this Code for making local regulatory acts. Vacations are required both for the employer and for the employee. But the time of the beginning of vacation, the employee must be notified under the painting no later than two weeks before it began. That is, compliance with the schedule of vacations will be mandatory for the employer, including during idleness.

According to Abz.6 Article 124 and para. 2 Article 125 of the Labor Code of the Russian Federation in exceptional cases, when the provision of vacation to the employee in the current working year may adversely affect the normal course of the organization, an individual entrepreneur, allowed from the consent of the employee to transfer leave for the next working year. At the same time, vacation should be used no later than 12 months after the end of that working year for which it is provided.

Recalling an employee from vacation is allowed only with his consent. Unused in connection with this part of the vacation must be provided by the choice of an employee at a convenient time for it during the current working year or is attached to vacation for the next working year.

It is not allowed to feed from the holidays of workers under the age of eighteen, pregnant women and workers engaged in work with harmful and (or) hazardous working conditions.

That is, you have the right to withdraw an employee from vacation only with his written consent. Thus, now you should send an employee's appropriate notification and get his written consent. If the employee refuses to execute the employer's disposal of the employer to work until the end of leave, then such a refusal is not a violation of labor discipline.
Consequently, the employer in this case cannot apply any penalties to the employee. This conclusion is confirmed by paragraph 37 of the plenum of the Supreme Court of the Russian Federation of March 17, 2004. (Part of the second Article 125 of the Labor Code of the Russian Federation), the refusal of the employee (regardless of the reason) from the execution of the employer's order to enter the work until the end of leave cannot be considered as a violation of labor discipline.
In the event of the consent of the employee to go to work earlier than the end of the vacation, unused in connection with this, a part of the holiday should be provided for the choice of an employee at a convenient time for it during the current working year or is attached to vacation for the next working year. I can provide a service for compiling notification and consent, as well as advice in the order of execution of an exit of an employee from vacation. On this issue you can contact Chat or Skype. With respect F. Tamara

Simple is a temporary suspension of work for the reasons for an economic, technological, technical or organizational nature. In the Labor Code of the Russian Federation, he is mentioned quite briefly, although in practice it is often necessary to arrange simple. It can be caused by a breakdown of equipment, extraordinary circumstances. In some cases, employees cannot be transferred to another work, which is impossible to leave on the previous one (for example, if it is contraindicated). With regard to downtime, the Rostrud and other departments at the request of law enforcers exist.

Whose fault and for what reasons can be simple?

May arise the fault of the employee, the fault of the employer or according to the circumstances independent of the employee and the employer.

The wines of the employee are expressed, for example, in the breakdown of the machine, the mechanism, the device or other equipment that caused the impossibility of working on it. The employer may be guilty that it has not been organized enough to organize the labor process, did not create the necessary conditions for the fulfillment of labor duties, which arose simple. Circumstances that do not depend on the employee and the employer may arise, for example, due to a strike, non-fulfillment by counterparties of their obligations under the contract (untimely delivery of materials, parts, assemblies, units, etc.).

Confirmation: Part 3 Art. 72.2, Art. 157 Labor Code of the Russian Federation.

The causes of downtime (temporary suspension of work) are considered circumstances of an economic, technological, technical or organizational nature (Part 3 of Art. 72.2 of the Labor Code of the Russian Federation).

The reasons for economic nature can be attributed, for example, an economic crisis, a drop in demand for goods, the absence (deficiency) of customers (buyers), etc. The reasons of technological nature are the introduction of new technologies (techniques, methods of production) or updating existing ones. The causes of a technical nature are malfunctions, breakage, equipment replacement. Under the causes of the organizational nature are understood, for example, the reorganization of the organization as a whole, the elimination or reorganization of its structural units.

Comment:- The establishment of the perpetrator of inactivity has its own characteristics. I think that it is always necessary to take into account, whose it is the fault that workers cannot fulfill their labor duties, since this depends on the payment time of downtime. If one employee is guilty of damage to the equipment, which is used in addition to it, the fault of the remaining workers will not be in simple. This position confirmed Rostrud in his letter No. 1276-6-1 of May 12, 2011.where it clarified that when a breakdown of the same machine, the wines in a simple can be determined in different ways. If the worker broke the machine, the cause of downtime for this employee will be its own guilty actions. For other workers using this machine, the simple will be caused by the reasons that do not depend on the sides, because in this case there is no employer or the employer or these workers in the breakdown of the machine.

The guilty employee will not be easy to pay, and it needs to be paid in the amount of at least two thirds of the tariff rate, the salary (occasion of the salary) calculated in proportion to idle time.

Confirmation: Art. 157 Labor Code of the Russian Federation.

What is the procedure for designing idle?

Design procedure Next.

1. Fix the fact of idleness.

The employee must inform the employer about the simple, which is caused by the equipment breakdown and other reasons that impede the continuation of work. To do this, he sends a notification notification to the beginning of idle. In practice, the employee addresses the notification to the immediate supervisor, who, in turn, brings this information to the attention of the head of the organization through a report note. However, the employee can turn to the head of the organization and directly.

Confirmation: Part 4 Art. 157 Labor Code of the Russian Federation.

2. Place an order for idle declaration.

Simple as a whole on the organization or for individual structural units (specific employees) is issued by the order of the head of the organization. Since the unified form of order is not approved, it is published in free form. The order includes the following information and conditions:

The start date and ending date. The specific expiration date may not be indicated if at the time of the publication of the order it is not possible to determine the duration of idle (the deadline for downtime, labor legislation does not establish);

By whose fault there was a simple: due to the fault of the employer, an employee or for reasons that do not depend on the parties (if at the time of the publication of the order it is already known);

Positions (professions), names of workers (employee) or the name of the structural units (divisions) of the Organization for which the simple one is declared;

The amount of pay time;

The need for presence of employees in the workplaces, for whom the simple or permission is declared not to go to work (indicating specific names, structural units or the entire organization as a whole).

With the order of simple, you need to acquaint the organization's organization under the signature, on which it distributes its action.

3. Notify the employment service about the simple, if it is associated with the suspension of production.

At the same time, as explained by Roshkrudav by letter No. 395-6-1 of March 19, 2012. We are talking about suspension of production in general, and not individual units or equipment. This should be done within three working days after the decision to suspend production (idle declaration) (paragraph 2 of Art. 25 of the Law of the Russian Federation No. 1032-1 of April 19, 1991). Since the unified form of the message is not approved, it can be compiled in free form.

4. Fill out downtime accounts (idle acts).

Downtime accounting sheets and simple acts are designed to take into account the specific time of downtime of each employee or a structural unit (organization) as a whole. The unified form of such documents is not approved, so they are compiled in free form.

How to arrange a downtime and an act of idle?

An idle accounting list is issued, as a rule, in case of idle of individual structural units and includes the following information:

The date of the idleness and its ending (if it is possible to set the end date);

The reason for the occurrence of downtime (it is desirable to indicate it in accurately according to the wording of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation);

On whose fault there was a simple: the fault of the employer, an employee or for reasons that does not depend on the parties (if at the time of the paper is already known);

Posts (professions), names of workers (employee) or the name of structural units (divisions) of an organization suspended;

Signature and decipher signatures of the head of the structural unit in which employees are idle.

The act of simple is drawn up if the structural unit is idle or the organization as a whole. He is signed by the leaders of the idle structural divisions, the personnel department, the labor protection service, a representative of the labor collective, etc. The act of simple indicates:

The reason and duration of downtime;

Guilty side of idle;

Posts (professions) of workers or the name of the structural units (divisions) of the organization suspended, etc.

The act is approved by the head of the organization.

In addition to these information, in downtime accounts and acts on simple, calculations of the organization's losses from idle, in particular the amounts to be paid to employees for the period of downtime, the amounts of taxes and insurance premiums with them, depreciation deductive objects, utility costs, canned premises, etc.

Is the employee being in the workplace during idleness?

It is obliged to be except for the case when the employer allowed him to be absent at work and issued such a permit written (for example, by order).

Labor legislation is not directly regulated by the issue of the need for the presence of workers in workplaces during idle time. But since the period of idleness refers to the working time (part 1 of Art. 91 of the Labor Code of the Russian Federation), and not by the time of rest (Art. 107 of the Labor Code of the Russian Federation), employees cannot use it at their own discretion and leave jobs. Their absence at work without permission of the employer can be regarded as a violation of labor discipline.

The employer (organizer of the organization) has the right to decide that during the downtime, the employee may not be present at work. Such an order is advisable to arrange in writing, for example, to include it with a separate point in order declaration.

It should be borne in mind that if the employee is on a probationary period, idle time is excluded from the test term, if it is missing at work. But if the employee during idle period does not leave the workplace, this time will enter his probation period.

Confirmation: Part 3 Art. 72.2, Art. 157 Labor Code of the Russian Federation, paragraph 7 of the Letters of Rostrud№ 395-6-1 of March 19, 2012

Does idle time in work experience, giving the right to another paid vacation?

Turns on in the work experience.

In the work experience, which gives the right to the annual primary paid leave, is included, in particular, the time when the worker did not work actually, but for him in accordance with labor law and other regulatory legal acts containing labor law standards, a collective agreement, and local agreements. Regulatory acts, the employment contract remained the place of work (position) (paragraph 3 of Part 1 of Article 121 of the Labor Code of the Russian Federation).

Rostrude explained that during the idle period, the employee retains the place of work (position), regardless of the causes of downtime. Therefore, the downtime is regardless of its reasons (including the fault of the employer, the fault of the employee or in circumstances that does not depend on the parties) is included in the work experience, which gives the right to another paid leave (paragraph 5 of Rostrudud No. 395 6-1 of March 19, 2012).

Any company may have difficult times when you have to temporarily suspend production. Caring for the preservation of the collective or at least the most qualified part of it becomes the main for the employer. Downtream announcement is one of the unpopular, but always forced organizational solutions. Initially, it is important to correctly determine the amount of payments that rely on employees. If the employer is to blame for the suspension, they have the right to 2/3 of the average earnings. But some reasons for downtime are difficult to qualify, and the employer may be mistaken and underestimated the amount for extradition. And not necessarily for evil intent. For example, at first glance, neither the employer nor the employee is to blame for the lack of orders. But the courts consider differently. In their opinion, a simple due to the complex financial situation of the employer must be paid on the basis of the average earnings. Not so definitely develops a situation when responded by a license: some courts consider it a legitimate payment based on the salary of the employee, while others take on the basis of its average earnings.
Simple for the fault of the employer must be paid on the basis of the average earnings
The employer has the right to suspend the work of the organization as a whole or individual divisions (departments, sectors, workshops) for the reasons for economic, technological, technical or organizational nature. In most cases, a simple is associated with the economic situation of the company.
Since in the case of a dispute, it is necessary to prove the presence of a factor to be an employer, before the idowacke declaration it is important to determine its appearance. In other words, it is necessary to find out whose fault the organization (its part) is suspended.
The most difficult thing is to establish whether there are fault of the employer in a simple or, it is caused by the reasons that do not depend on the employer or from the employee. From this will depend on the procedure for calculating payments to employees: based on the average earnings or salary (tariff rate).
Undoubtedly, with a financial point of view, the situation is more profitable for the company when the guilt of the employer is not in a simple. However, it is not necessary to try to intentionally distort the facts and expose the situation in the wrong light, trying to reduce payments to employees. In the event of a dispute, the money will still have to pay extra, but only already in court order. In addition, employees may require compensate for moral damage, and these are additional costs.
The main criterion of distinction is the presence or absence of the guilty actions of the employer or its inaction, and both deliberate and caused by inept management or management of the company without taking into account entrepreneurial risk. However, in practice, some circumstances are difficult to classify. For example, a review of a license from the organization that leads activities in the banking sector.
So, the employee has a real chance to challenge these payments, so the employer needs to be carefully considered to assess the circumstances that caused simple.
By the way
Simple due to lack of orders is paid as the suspension of the work due to the fault of the employer
Payments to employees depend on the correct classification of downtime. If there is fault of the employer, they will be higher, in its absence - below (part 1, 2, Article 157 of the Labor Code of the Russian Federation).
Companies are often faced with problems of economic nature (there are no orders for products or the financial crisis comes). And the employer is interested, whether these events can be attributed to the number of factors, in whose offensive it is not to blame.
The courts believe that the temporary suspension of the work caused by the deterioration of the economic situation in the Organization is considered as simple for the fault of the employer with a payment 2/3 of the average earnings.
According to the courts, the negative financial position of the employer (lack of orders), as well as a decrease in demand for products. It is a financial (commercial) risk and belongs to its immediate fault. To refer to the circumstances of force majeure in this case is useless.
An employee can be dismissed for
If he, in violation of the order of the employer, was absent at work during the period of downtime. Termination of the employment contract for sub. "A" p. 6 h. 1 Art. 81 TK RF will be recognized legal.
The employee must attend work, unless otherwise noted in the order of simple
To send employees in simple, you need to publish an order. It will take advantage of the period of temporary suspension of work. In the case of a dispute, the courts carefully check the fact of documentary downtime.
Since there is no unified form of order, the employer has the right to develop it independently. The procedure also does not impose special requirements for the content of the order, but, given the judicial practice, the following should be reflected in it.
Data period. The legislation did not establish deadlines, so they will depend on concrete circumstances. If at the time of the publication of the order it is not possible to determine the ending date of idleness, it is not necessary to indicate it, it is not necessary to refer to the link to the event, for example, the conclusion of the contract with the counterparty.
Cause of downtime. The employer should describe specific circumstances that led to the suspension of work, as well as the nature of the causes of idle - economic, technological, technical or organizational. It is possible that the suspension of events served as a reason for idle.
Information about workers sent to simple. There is enough to specify the names, names, patronymic, positions (professions) and the name of the structural divisions of employees in respect of which is declared simple. If there are many of them, then the named lists can be issued by the application to the order.
Downtream culprit and payout size. Depending on who is to blame for temporary suspension of work, the amount of payments relying to employees will be determined. They have the right at least 2/3 of the entire salary (including surcharges and allowances), if the employer (part 1 of Article 157 of the Labor Code of the Russian Federation) is fault. The absence of his guilt reduces payments up to 2/3 of the salary or tariff rate, and the wines of the employee in a simple completely deprive of his money.
Actions of workers during idle time. When idling an employer has the right to determine if employees need him during this period on workplaces or not. For example, in the case of short-term suspension of work with the possibility of resuming activities at any time, it is more convenient if the staff will be present at production. Otherwise, they can be dissolved at home. But, anyway, the employer has the right to oblige workers to attend the workplaces.
However, due to the lack of a ban in the law, the employer has the right to take the opposite decision and to free employees from this need, allowing not to go to work during idleness. The main thing is to fix the one who is (indicating the names, names and positions) has an opportunity. In addition, it is worth indicating the method of notifying employees about the completion of downtime and the need to proceed to the execution of the labor function. To do this, telegrams are suitable, phone calls or SMS mailing.
With the order about a simple worker, you need to get acquainted with a painted, and in case of refusal to draw up an act.
How to justify the causes of downtime

Causes of downtime *	Circumstances of downtime and his culprit **	Documents confirming the cause of downtime
Organizational	Changing the location of the structural unit in connection with the transfer of production to another locality, the lack of raw materials, tools, equipment, technical documentation for the employees of their labor functions, unsatisfactory organization of related processes. The culprit is an employer	Order on the establishment of a stationary workplace, lease agreements (sublease), equipment supply, information from the tax inspectorate on registration with the tax authority
Technological	Changes in product manufacturing techniques or violation of established technological processes. The culprit is an employer who has not assessing the costs when moving to a new technology; An employee who violates the production procedure (technological operation) of a product or product. In idly there will be no guilt of the sides, if the raw material is originally marked	Instructions for production (including labor protection), job descriptions, other local acts
Technical	The introduction of automated and computerized production methods leading to the release of employees at certain stages of production, breakdown equipment. The culprit is an employer in the event of an uncontrolled release of personnel or non-compliance with warranty service. The employee will be to blame if his actions or inaction led to the failure of the equipment	Acts, operational documentation, labor protection instructions, job descriptions
Economic	Financial crisis, the serious material status of the company, violation by counterparties of contractual obligations. The culprit is an employer	Accounting documents indicating losses concluded contracts with counterparties and claim letters to their address.

A simple can be caused by a set of circumstances.
** The circumstances of the temporary suspension of the work recommend specifying in an order of simple. When familiarizing employees with the order, this information will remove questions about downtime.
Interest Ask
Can force majeure be caused by downtime?
Yes, if under Force Major, understand the events of force majeure, affecting the work of the whole organization, its divisions or individual workers. For example, simple can cause complex climatic conditions.
Simple occurs for various reasons. Some of them are associated with the fault of the employee, in others - the employer is to blame. But it happens that the fault of the sides in a simple no.
The abnormal example of such a situation is the abnormal heat of 2010. Employers who released employees from work or reduced the time of their stay in the workplace, could safely pay the period of downtime in the amount of 2/3 of the salary (tariff rate). There were no guilt in the suspension of work. This was confirmed by the Ministry of Health and Social Development of Russia in information from 06.08.2010.
Similar rules will act if similar events repeat.
However, more difficult to classify the current situation are possible. So, Rostrud in private clarification led an example when an employee who broke the machine is introduced into a simple without payment (Part 3 of Art. 157 of the Labor Code of the Russian Federation). His colleagues working on the same unit will receive 2/3 of the salary or the tariff rate, since in the crash, there are neither their guilt, no guilt of the employer (Letter from 12.05.2011 No. 1276-6-1).
Notify employment service need, even if part of employees are located
In idle declaration, the employer must notify the employment center. This is the requirement of para. 2 p. 2 Art. 25 of the Law of the Russian Federation dated 19.04.1991 No. 1032-1 (hereinafter - Law No. 1032-1).
If the employer does not send a notice, he threatens administrative responsibility under Art. 19.7 of the Administrative Code. True, its size is small. The leader will have to pay from 300 to 500 rubles, and organizations from 3 thousand to 5 thousand rubles.
Since the form of notification in Law No. 1032-1 1 is not given, the employer has the right to draw up a letter in arbitrary form. It is the most convenient to use the company's branded blank, but if it is not, then in the preparation of documents it is better to apply GOST R 6.30-2003. This standard contains all the necessary details. But before that it is advisable to contact the Center for Employment and clarify whether they are not developed by the form suitable for such cases. It will help save time and nerves, proving officials that the free form is also permissible.
Create and send a notice to be needed within 3 working days from the date of publication of an order announcement. The document can be taken in person (courier) or send via mail. Mailing with a receipt notice - a great way to confirm the fulfillment of the requirements of the NORM standard. 2 p. 2 Art. 25 Law No. 1032-1.
In practice, there are several questions about interaction with employment centers.
The first of them concerns the idle period, which should be notified of government agencies. It is not entirely clear whether it is necessary to report on the weekly suspension of work or its duration should be a quarter or longer period.
Neither the Labor Code of the Russian Federation nor the law No. 1032-1 do not share the simple on a long and short-term. Therefore, the notification must be compiled regardless of the period of temporary suspension of work. Otherwise, the claim to the employer will be absolutely substantiated.
Another question is associated with the application in practice of the clarification of Rostrud, given in paragraph 6 of the letter dated 19.03.2012 No. 395-6-1. According to officials, notify the employment center is needed in case of suspension of all production.
The simple whole organization is unlikely, although a possible event. Comprehensiveness in the company is likely to force to suspend work in manufacturing units engaged in the manufacture of goods or their implementation. Administration workers, accounting and personnel department will remain on the ground. That is, work may not be only part of the staff.
The question arises: does it mean that the rest should also be sent to simple, and before that do not inform the employment center? The answer to it will be more negative. The employer cannot be made to declare easy workers whose employment is provided. Especially this should not be done for the notice of government agencies.
Therefore, regardless of the idle period and the number of employees who suspend the work, send a letter to the Employment Center about such an event must be necessary.
Interest Ask
What documents, testifying to simply, need to have in an organization?
You will need orders, acts, reports and service notes, reports, accounting statements and accounting tables.
The law does not have a list of documents that need to be issued when idling. The obligatory papers include the order of the beginning of the downtime and the working time accounting table, in which by virtue of Part 4 of Art. 91 of the Labor Code of the Russian Federation records the time.
But in the case of the dispute, other documents will be useful. Based on the official and report notes of the heads of departments, it is possible to conclude about persons guilty of simple, and the causes of its offensive. In idle accounting, it is convenient to fix the time (up to minute) and the dates to which the employee did not work. From the table will become clear what days you need to pay in a special order, and the statements for the issuance of wages and the calculated sheets will be confirmed by paying.
If the employer pauses work, but the order is not published, then the workers still have chances of collecting the amounts put them. In one case, they were helped by SMS messages and evidence of the calls of the employer, after which they did not go to work. The court found a violation of the non-payment of the day, missed the fault of the employer.
Hospital paid only if the employee fell ill before idling
The employer faces a difficult situation if the employee's disease occurred during the downtime. This is due to the fact that temporary disability allowance is a compensation payment that replaces the salary, and the simple fault of the employer and is so paid. In this case, the accountant can decide that the employee is not relying.
Indeed, earlier disputes constantly arose on this issue, and in practice the problem was solved in two ways.
According to the first of them, the employer did not pay temporary disability allowance if the employee's disease occurred during the downtime. The FSS of Russia adhered to this position.
The second way was supported by the courts. So, in the opinion of the Presidium of the Russian Federation, the employee was entitled to allowance for temporary disability, regardless of when the disease began - before the start of idle or during the suspension of work.
However, such a point of view of the courts did not find support from legislators and to the Federal Law of December 29, 2006 No. 255- FZ "On compulsory social insurance in case of temporary disability and due to motherhood" (hereinafter - the Law No. 255- FZ) were amended . As a result, from 2011, double interpretation is removed. And the Constitutional Court of the Russian Federation in the definition of January 17, 2012 No. 8-O-o confirmed the legitimacy of such an approach of lawmakers.
Therefore, now the employer pays the manual only if the employee's disease occurred before the organization announced a simple (paragraph 5 of Part 1 of Art. 9, Part 7 of Art. 7 of Law No. 255- FZ). The amount of benefits is defined as follows. During the days of the disease before the start of the suspension of work, it is calculated according to the usual rules, and the period of disability, which coincided with the downtime, is paid as idle time, but not higher than the amount of the benefit, which the employee would receive according to the general rules.
Thus, the employer's refusal to pay the sick leave, issued during idle, is absolutely legal.
By the way
Starting period should be noted in the working time accounting table by a special code
Despite the optional unified forms, employers continue to use them. In one of them - No. T-12 - listed and digital codes are given, which are used to designate different periods.
After the entry into force of the Federal Law of December 6, 2011 No. 402- FZ (hereinafter - the Law No. 402- FZ) of the Organization is entitled to develop their own forms of primary accounting documents. This feature is provided in. 4 tbsp. 9 of Law No. 402- FZ.
But in personnel document flow, most employers still use unified forms; They are comfortable enough and are also familiar. Of course, in some cases it has to be their own templates or complement existing ones. For example, to designate a break for feeding a child, you will need to come up with a separate designation.
To properly take into account the time of downtime through the fault of the employer, you can use the "RP" code or "31". The time marked in this way will need to be paid in the amount of 2/3 of the employee's average earnings.
If the worker is to blame, the encoding changes to "VP" or "33" and on "NP" or "32" in the case when there is no hile in the suspension of work.
Translate an employee to another job without his consent
Only if the simple is caused by emergency circumstances: a production accident, a fire. In the absence of such events, the translation is illegal. And the transfer to a position with a lower qualification without the consent of the employee is not possible at all. The reason for idle in this case is not important (Part 3 of Art. 72.2 of the Labor Code of the Russian Federation).
Simple during the reduction period is possible if there are objective reasons for this.
There are situations where the employer simultaneously conducts measures to reduce the number or staff and declares the simple for workers notified of the dismissal.
Such actions are legitimate, only if the works are really no, and the suspension is temporary. Otherwise, from the company in favor of the employee charges the lost salary.
To avoid difficulties, you need to take into account the following.
From the date of the notification of the employee about the date of termination of the employment contract in connection with the reduction and until the last day, it works on the previous conditions. The upcoming dismissal on the essence of labor relations does not affect. The employer continues to provide an employee with work and tools for its implementation, and also in a timely manner and in full to pay wages (part 2 of Art. 22 of the Labor Code of the Russian Federation).
In terms of sense. 3 Art. 72.2 TK RF is simple is a temporary measure caused by the onset of certain circumstances that do not entail a decrease in the number of employees and termination of the employment contract. The order of simple can be published only if negative for organizing events with an economic, technological, technical or organizational nature occurs. The staff reduction itself does not apply to such events, but is, as well as simple, their consequence.
Therefore, if there are objective reasons for temporary suspension of work, it can be announced for employees who were warned about the dismissal under paragraph 2 of Part 1 of Art. 81 TK RF (reduction in number or state).
In the event of a dispute, the court will appreciate how reasonably the employer has suspended work with respect to the employee.
So, if the organization has arisen difficulties and submitting work to all employees is impossible, then the introduction of idleness is allowed even during the period of measures to reduce the state or number. The main thing is that the reason was convincing.