Can an employee work continuously at night? Organization of work at night. Rules of attraction and schedules

A work shift starting after 22.00 is called a night shift. Night staff appeared due to the peculiarities of the technologies of many industries: for example, steelmaking shops cannot be stopped for a minute.

Labor Code on night work

The legislator formulated a list of categories that are allowed to work after 10 p.m., terms of payment, and defined the term “night work.” The Labor Code states that the period of time from 22.00 to 6.00 is considered night (Part 1 of Article 96 of the Labor Code of the Russian Federation).

Night mode affects biorhythms and threatens the normal functioning of body systems. Therefore, the law has introduced restrictions on work at times other than during the day for some categories. It is prohibited to work at night:

• pregnant women;
• under 18 years of age.

At the same time, the law provides for the possibility of involving persons who are permitted by law not to work to work on the night shift, but they have the right to accept the employer’s offer and give written consent if their health allows. This:

• mothers with children under 3 years of age;
• guardians raising children under 5 years of age in a single-parent family;
• disabled people and those with children with disabilities.

Workers in these categories have the right not to agree to work at night. The employer is obliged to familiarize employees with this item of the work schedule once, against signature, if night work is permanent, arising from the needs of production technology. If night shifts are one-time shifts, then each time such a need arises, the employee must confirm in writing that he has become familiar with the right to refuse a night shift.

An employee can indicate his attitude towards night work immediately upon applying for a job. At the same time, he must indicate the details of a medical document indicating the absence of contraindications for such work. The form of such a certificate is provided for by Order of the Ministry of Health and Social Development of the Russian Federation No. 441n dated 05/02/12.

If a person applying for a job does not belong to any of the above categories, but has contraindications for working at night, which the employer does not inform about, he does not have the right to demand a certificate confirming the absence of contraindications. Except in cases where the need to provide such information is established by law.

If the employer is aware of contraindications for night work and is involved in it, the employer bears administrative responsibility.

When working in shifts, it is prohibited to draw up a schedule according to which you need to work two shifts at once. For example, having gone out at night, an employee cannot begin work on the day at the end of his shift. The employer is obliged to inform the staff of the exit schedule at least a month in advance.

It is worth noting: It is necessary that the employee has the opportunity to change day and night shifts. This will improve the worker's performance level and increase productivity in the workplace.

Duration of night shifts

Depends on the status of the worker and the type of activity and can be regular or reduced.

It is enshrined in law (Part 2 of Article 96 of the Labor Code of the Russian Federation) that the duration of the night shift is less than the day shift by an hour. If a daytime work shift lasts 8 hours and is given an hour of rest and lunch, at night the employee works 7 hours, also receiving an hour of rest for lunch. Thus, the harmful effects on the human body of a work and rest schedule unusual for its biorhythm are neutralized.

At the same time, night time according to the Labor Code (Part 3 of Article 96) is established without reduction for the following categories:

Additionally

Part 2 of Article 96 of the Labor Code of the Russian Federation especially notes that in the case where the duration of work at night has been reduced, there is no need to subsequently work out the missing hours during the day. Accordingly, the employee’s weekly working hours are reduced.

1. Already working on a shortened schedule (for example, mines, where any shift lasts 6 hours). For this category of workers, the employment contract reflects this fact and the impossibility of reducing the night period.
2. Accepted exclusively for night work. This condition is stated in the employment contract (Article 57 of the Labor Code of the Russian Federation).

The legislator is not against it if the size of the night shift is reduced for such categories of workers. The solution to the issue is within the competence of the manager and can be approved by local regulations.

With a six-day work week with one day off, the night shift lasts no more than 5 hours.

The working hours of artists (cinema, radio, TV, etc.) are regulated by local regulations.

Payment for work at night

How night work is paid under the Labor Code is regulated by Article 154. According to the norm, for night work a benefit is assigned in the form of an additional payment in an amount not lower than that provided for by the Labor Code of the Russian Federation and other legislative acts containing labor law norms.

According to Decree of the Government of the Russian Federation No. 554 of July 22, 2008, it must exceed the daily wage by at least 20% for each hour of work (salary calculated per hour of work).

That is, if the daytime rate is 100 rubles per hour, then for an hour of night work you need to pay at least 120 rubles.

Note: employers have the right to set payment based on capabilities, but not below the level established by the legislator.

The amount of payment for night hours is stipulated upon hiring in an employment contract or some local document of the organization. The preferential nature of remuneration for night work applies both to those constantly employed on the night shift and to those performing work once, from time to time.

How is hourly wages determined?

To establish the amount of additional payment for night work according to the Labor Code of the Russian Federation in 2020, you need to determine the amount of hourly pay. There are two ways to calculate it:

1. When paying according to daily earnings, its amount is divided by the duration. For example. The daily rate is 800 rubles, the day shift is 8 hours. The hourly rate is 100 rubles.
2. When paying a monthly salary, it is divided by the number of hours worked for a particular month.

In addition to the mandatory premiums established by the legislator, the employer may adopt local regulations providing for financial or other compensation for its employees for harmful conditions.

What categories of workers are legally prescribed a different surcharge?

For night work, additional payment is established by law and cannot be otherwise (letter of Rostrud dated October 28, 2009 No. 3201) for:

• workers of paramilitary, fire and security guards - 35% of the salary;
• employees of the Federal Penitentiary Service - 35% of salary;
• medical workers - 50% of the tariff rate (salary);
• workers of emergency and ambulance teams - 100% of the hourly tariff rate (salary).

There are categories of workers to whom night supplements are assigned by industry agreement. If regulations establish night supplements for this category, the employer is obliged to choose one that is more beneficial for the employee.

If work at night falls on a holiday or weekend, and the schedule is not staggered, the employee is entitled to additional payment on this basis as well. Find out more about wages on weekends and holidays under the Labor Code.

Ask your question and get free legal advice

Night work is regulated by Art. 96 Labor Code of the Russian Federation.

The provisions of this article do not apply to employees of the enterprise who work on reduced working hours, as well as to those who were specially hired to work at night.

Typically, the specifics of night work are regulated by individual internal acts of the enterprise or general agreements with the team of employees, but not a single local document should contradict the law.

The legislation establishes the following restrictions and features of work at night:

• working hours at night are reduced by one hour for almost all employees without any additional sanctions from the employer;
• a night shift can be equal in duration to a day shift if the performance of labor duties at night in full is necessary for the functioning of the enterprise, as well as when performing duties on shifts if the duration of work is 6 days a week;
• there is a special list of workers who cannot be assigned to night work within the framework of current legislation, for example, pregnant women or minors;
• some of the organization’s employees can be involved in work at night only with written consent, with their mandatory familiarization with the possibility of refusing to perform duties at a given time of day;
• regulation of the activities of workers in creative professions and media employees at night occurs through the conclusion of a collective labor agreement, as well as with the involvement of a tripartite commission to determine the need for work at night.

Regulation of labor relations when establishing night working hours can occur in accordance with the current provisions of labor legislation and federal regulations that directly or indirectly reflect the specifics of establishing such a schedule, as well as by issuing regulations of a municipality or enterprise.

Who is not allowed to work at night?

Many managers strive to organize continuous work activity at the enterprise, since a lot can depend on this not only for the organization itself, but also for the users of their products or services.

When an organization immediately switches to a 24-hour work schedule, the employer, together with the trade union, develops a work schedule, which should take into account not only work efficiency, but also take into account the infliction of any moral and physical harm to employees. This is expressed in establishing the maximum duration of night shifts in a row, the total time of their duration, as well as the necessary breaks in work.

Employees of the organization must have the opportunity to carry out work not only at night, but also during the day, with the exception of cases of hiring an employee at night.

The employer is obliged to warn the team of employees about changes in the procedure for carrying out work one calendar month before the actual changes, otherwise such behavior will be considered a violation of current labor legislation while respecting the rights of the employee.

The following persons cannot be admitted to the labor process at night:

1. Pregnant women who have confirmed their condition with a medical certificate.
2. For minors, an exceptional case is work for the development of cinematography, theatrical skills and any other creative professions.
3. Employees of the enterprise who, due to health reasons, are unable to perform their duties at such times.

The legislation establishes certain categories of the working population who can carry out activities at their own request and with the provision of a document confirming it - an application.

• women who have a dependent child aged zero to three years;
• disabled people for whom working at a given time of day will not cause harm to their health;
• employees of the organization who support disabled children;
• workers who, in addition to their work duties, care for sick family members;
• parents and guardians of children under five years of age, if they carry out educational functions alone without a second spouse or guardian.

At the same time, it is established that the application for consent to work must be accompanied by a medical certificate confirming the state of health and the absence of contraindications for night work. The employer is obliged to notify these employees that they have the opportunity to refuse to perform work without any sanctions from management.

A disabled employee who wishes to work under such conditions must provide an extract or opinion from the attending physician or medical commission on the possibility of working at a given time of day and the absence of contraindications for such work.

Duration and number of night shifts

Art. 96 of the Labor Code of the Russian Federation establishes that the duration of night work is from 7 to 8 hours of working time. Hours are assigned to employees based on their normal working conditions and the availability of fringe benefits.

As a general rule, the night shift is work performed from ten o'clock in the evening to six in the morning the next day. An employee of an organization may be assigned a partially night working day, for example, when setting a schedule from 5 pm to 1 am.

Despite the possibility of reducing the period of night work, some categories of employees are not entitled to it.

Such workers include:

• employees who, due to other circumstances, are entitled to a reduction in long working hours during the day;
• employees specially hired to work at night - night guards or watchmen, for example.

Art. 103 of the Labor Code of the Russian Federation establishes the maximum possible assignment of night work in a row. According to the rules of the Labor Code of the Russian Federation, an employer does not have the right to oblige an employee of an organization to go out at night more than twice in a row.

What hours are considered night hours?

In accordance with Art. 96 of the Labor Code of the Russian Federation, night shifts include working hours from 10 pm to 6 am. There are some exceptions to this rule, in particular, if more than half of the working time is at night, then the shift is considered a night shift.

If work is carried out, for example, from 20 pm to 4 am, the employer assigns the employee a night shift, but a shift worker who starts at 4 am will not be assigned such a shift.

As a general rule, the total duration of night shifts is regulated by the following acts, but their provisions should not contradict the law:

• local regulations of the enterprise, which establish not only the duration of the night, but also the specifics of payment for night hours;
• a collective agreement, if it has ever been concluded;
• an individual employment contract, which specifies the employee’s duties, the time and duration of his working day or night, as well as payment terms.

Payment for night hours

Night shifts are paid at increased rates; the size of the increasing coefficient must be established by the Government of the Russian Federation, taking into account the decisions of the tripartite Russian commission for the regulation of social and labor relations. In accordance with Art. 154 of the Labor Code of the Russian Federation, the employer is obliged to increase pay for night time, but the provisions of this article do not establish the exact increase. The provisions of the USSR, which are not repealed by regulations of the Russian Federation, are often applied, within the framework of the grounds established by Art. 423 Labor Code of the Russian Federation.

Allowances for night work are established in the following amounts and are regulated by these provisions and norms:

Field of activity of the employee	Supplement for night work	Regulatory normative act
Activities in the field of military affairs	35% of regular daily rate per hour of work
Fire protection
Sentry security
Healthcare workers	50% of the daily rate per hour of work
Employees of penal institutions	35% of the daily rate per hour of work
Law enforcement officials

According to general statistics, employers apply a premium of 20% to 40% for night shifts for each hour of work.

Extra pay for night shifts

In accordance with Art. 154 of the Labor Code of the Russian Federation, an employee who works at an enterprise at night is entitled to an additional payment.

Additional payment is carried out in accordance with the provisions:

• a collective labor agreement, if it is concluded at a specific enterprise and does not contradict current legislation;
• an individual employment contract with a specific employee;
• local regulations of the enterprise where such activities are carried out;
• regulations on payment for night shifts of the USSR, which are in force today;
• Decree of the Government of the Russian Federation of July 22, 2008 No. 554.

Government Decree No. 554 establishes a mandatory minimum premium for night work. In accordance with the provisions of this act, an employee who works at an enterprise at night is entitled to a bonus of no less than 20% of the total daily tariff rate for each shift.

Employee consent to work at night

Carrying out work at night for some workers requires drawing up a document of consent to such workdays. The general list of employees who must sign and submit the relevant document is stated above.

Consent to work on night shifts must be formalized by a person if he is ready, at the request of the employer, to work in the period from 10 pm to 6 am. In addition to consent, it is necessary to provide a medical report on the real possibility of working in such conditions.

The consent usually includes the following information:

• information about the recipient of the application, i.e. employer;
• information about the employee;
• general part, which indicates consent;
• date and signature of the employee.

After submitting the application, the manager forms an order assigning the employee to night shifts in general mode; the employee’s consent and his medical report are attached to the order. There are no specific requirements for drawing up consent. The document is transferred to the HR department or the manager personally, and then reviewed. As a result, an order is issued to assign the employee to night shifts.

Pros and cons for the employee

Despite the apparent difficulty of working at night, this schedule has its pros and cons.

Significant advantages include:

1. The shorter duration of the working night compared to the day means that the employee will actually work less than his daytime colleagues.
2. Increased wages, on average from 20 to 50%, depending on the specifics of work and field of activity.
3. Additional days off, which are assigned as a supportive measure.
4. In some cases, more loyal working conditions.
5. Free day or evening.

Serious disadvantages:

1. Night shifts are a serious blow to health, because... The body needs to sleep during this period of time.
2. Not only physical health problems may arise, but also psychological ones - alienation, apathy and depression.

Night shifts are a choice between the employer and the employee, since in most cases the appointment of such a work schedule requires written consent from the employee. Moreover, the employee can either accept the employer’s offer or refuse it without any sanctions from management.

Download

You can download a sample Application for Consent to Work at Night in .doc format

There are situations when the employment contract provides for night work hours; the performance of duties in this case is regulated according to a different scheme than during the daytime.

Therefore, it is very important to know your rights and obligations, both as an employer and as an employee. There is legal regulation of work at night.

What it is

Working hours are the time that an employee spends on performing work duties according to the employment agreement and internal regulations of the organization.

It is very important that a normal working week does not exceed 40 hours of work; this is stipulated in the Labor Code of the Russian Federation.

The employer undertakes to monitor the working hours of its employees and keep actual records. In some cases, additional time is provided that the employee can devote to part-time work.

The duration of such cooperation should not exceed 4 hours per day or not exceed 20 hours per week. Also, an employee who, in addition to work, receives full-time education, does not have the right to exceed a 20-hour weekly schedule.

Night work is the performance of labor activities at night, namely in the period from 22 o'clock at night to 6 o'clock in the morning.

There are several basic possibilities for scheduling labor and working hours:

Part-time or part-time work	salary is accrued for time worked or, by agreement, for completing volumes
Working during holidays or on the eve of weekends	on such days, working hours are reduced by one hour; if it is impossible to stop the main routine, additional payment is made, as for overtime hours
Full time work	a full working day should not exceed eight hours, excluding breaks
Night work	in normal cases, the duration of night work should not exceed 7 hours
Overtime time	the employer has the right to assign hours in excess of the normal routine if this is provided for in the labor agreement or federal legislation
Irregular daily routine	working hours are specified in the employment contract by agreement of the parties

Important: An employer cannot involve an employee in night work if he has not reached the age of majority.

What does the Labor Code say?

Chapter 15 “General Provisions”, “Night Work” of the Labor Code of the Russian Federation, provides for the procedure for carrying out work activities at night and regulates the responsibilities of the employer and employee:

• night shift is considered to be a period of time from 22 hours to 6 hours;
• Unlike the daytime routine, which should not exceed 8 hours, the nighttime routine is 7 hours. The night shift is equivalent to the day shift and is taken into account as a full eight-hour working day. That is, the weekly amount of working time is not violated;
• in cases where an employee works under a contract where shifts and a six-day work week are provided, then the time for a night shift should not exceed 5 hours;
• if an employee holds a position that requires periodic night work, then in this case the working hours are prescribed in the employment agreement or other regulations, for example, employees of the film industry or representatives of the mass information system

Important: An employer cannot engage an employee to work overtime for more than two days in a row.

The Labor Code also provides for special cases when the employer has the right to involve an employee in overtime performance of work duties:

1. In cases where, for technical reasons, there is an unplanned delay in the performance of an employee’s work duties, the employer has the right to assign overtime work hours to prevent damage to the property of the organization, customers or suppliers (third parties).
2. If an unforeseen situation has affected the failure to carry out planned work of national importance.
3. If failure to complete the work will result in harm to the health of other people.
4. In unforeseen situations, when it is urgent to carry out repair work, if, if problems are not corrected, there is a threat of disruption to the general working routine of the organization.
5. In a situation where a worker is absent from continuous production for unjustified reasons, it is urgently necessary to replace him in order not to interrupt the overall work.

Important: The number of overtime hours cannot exceed 4 hours per day or 120 hours per working year.

There are situations when an employer has the right, justified by the Labor Code of the Russian Federation, to oblige an employee to perform overtime work:

• in cases of global disasters, industrial accidents or in the process of eliminating the consequences of disasters, natural disasters or accidents;
• when performing work on which the normalization of the provision of citizens with heat, electricity, gas, water, and transport depends;
• in a special military situation in the country, to perform vital work that eliminates the threat to the population or ensures security.

Important: In general cases, an employer can involve an employee in overtime work only after the employee has written consent.

Who is not allowed to work at night?

Current legislation provides for a group of citizens to whom night or overtime work cannot be applied:

• women who are pregnant;
• employees who have not reached the age of majority;
• disabled people;
• women who have dependent children under 3 years of age;
• single parents or guardians of children under five years of age;
• parents or guardians of disabled children;
• people who are examining a sick relative, if they have a medical certificate.

Important: Such a group of citizens can voluntarily agree to work at night or to work overtime, only in writing and after signing a document where he confirms that he was familiar with the legal right to refuse to fulfill obligations.

What features does it have?

In production, it is very important to normalize continuous work, so managers often resort to establishing a shift work schedule, which can provide more efficient productivity.

Of course, one employee cannot physically perform night work all the time, therefore, even at the initial stage of transferring production to a round-the-clock operation, the employer undertakes, together with the trade union, to develop a schedule acceptable for employees.

It is very important that one employee has the opportunity to change night and day shifts, which increases his ability to work and thereby increases the level of productivity.

It is also worth remembering that night shifts are one hour less than day shifts. The exception is cases when the employee has already been subject to a system of simplifying work responsibilities in the form of reducing the working day by an hour.

Such measures apply to people who have medical indications for labor simplification or in cases provided for by law.

The employer undertakes to notify employees about the introduction of work schedules no later than one calendar month in advance.

If an employee with a disability wishes to perform night work, by written agreement of the parties, he must provide documentation of a medical examination that confirms that the person can perform this type of work.

If a medical report excludes the possibility of heavy work, the employee cannot be assigned to night work. Additional payments are also provided for overtime work at night.

Important: An employer cannot ask an employee to work two night shifts in a row, this violates the Labor Code of the Russian Federation.

Procedure for attraction

Engaging an employee to perform night work can only occur with the written agreement of the employee.

1. If an employee is already employed in an organization, when assigned to night work, he is required to write a shift consent, which will clearly state that he has become familiar with his right to refuse to perform work duties at night. The employee is also required to confirm that he is healthy and medically fit to perform night work.
2. In cases where an employee is specifically hired to perform work at night, such an agreement can be included in the employment contract, in the daily routine and vacation column. Also, such an agreement may be separately attached to the employment contract.
3. There are no specially designed forms or samples for applying for night work provided by law. Therefore, the HR department can formulate its own template according to which the employee will write an application.
4. If the employment contract does not provide for the possibility of involving an employee in night work, a separate agreement is concluded with him.
5. There are also a number of specialties that do not require a written agreement to perform night work (creative specialties).

Important: The legislation does not indicate anywhere that an employee is required to provide documents on a medical examination.

But in Art. 96 of the Labor Code of the Russian Federation, it is stipulated that the employee should not have health problems, so the employer must ask to present a medical report.

How to draw up a consent

According to the Labor Code of the Russian Federation, an agreement for night work must be drawn up in writing by the employee, but the legislation does not stipulate anywhere in what form this should be. Therefore, very often organizations use their own forms - “Agreement for Night Work”.

Also, such a statement can be written by the employee in any form; the main feature of the document should be that the employer has informed the employee of his right to refuse to perform this type of work.

Working at night is one of the most effective ways to establish uninterrupted production, which is why this method of working is often resorted to.

According to the Labor Code of the Russian Federation, employers must respect the rights of their subordinates, therefore every employee has the right to refuse night shifts, but in practice this happens very rarely.

Video: Part-time work

Working at night - everything seems to be simple: they were hired and paid at an increased rate. But there are certain difficulties. Incorrect involvement in night work is fraught not only with labor disputes, which may result in the recovery from the employer of additional pay and compensation for moral damage, but also with administrative fines under Art. 5.27 Code of Administrative Offenses of the Russian Federation. Let's answer some questions.

According to Art. 96 of the Labor Code of the Russian Federation, night work is recognized as every hour of the work shift falling on the period from 22.00 to 6.00.
Operating time at night is reduced by 1 hour. At the same time, the total number of working days per year in a three-shift mode should not exceed the total number of workers in one- and two-shift work. Thus, the normal working hours for workers working night shifts are reduced by a number of hours equal to the number of night shifts.
The duration of night work is not subject to reduction for employees who have already been assigned a reduced working time, as well as for employees hired specifically for night work.
The duration of work at night is equal to the duration of work during the day in cases where this is necessary due to working conditions, as well as for shift work with a six-day work week with one day off. The list of specified works may be determined by a collective agreement or local regulations.

Who cannot be allowed to work the night shift?

The following are not allowed to work at night:
- pregnant women;
- employees under the age of eighteen (except for persons involved in the creation and (or) performance of artistic works);
- other categories of workers in accordance with the Labor Code of the Russian Federation and other federal laws.
In addition to these categories, permission to work at night in accordance with Art. 96 of the Labor Code of the Russian Federation, only with their written consent and provided that such work is not prohibited for health reasons in accordance with a medical report, the following employees can:
- women with children under three years of age;
- disabled people;
- workers with disabled children;
- workers caring for sick members of their families in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;
- mothers and fathers raising children under the age of five without a spouse, as well as guardians of children of this age.
At the same time, these employees must be informed in writing of their right to refuse to work at night.

How are night work paid?

The minimum amount of additional payment for night work should not be less than 20% of the hourly tariff rate (salary (official salary) calculated per hour of work) for each hour of night work. This amount is established by Decree of the Government of the Russian Federation of July 22, 2008 N 554. The specific amounts of the increase are established by the employer, taking into account the opinion of the representative body of employees, the collective agreement, the employment contract, as well as other regulatory documents. So, for example, remuneration for federal civil servants of the customs authorities of the Russian Federation for work at night is carried out on the basis of Order of the Federal Customs Service of December 26, 2008 N 1672. According to this Order, employees of the customs authorities of the Russian Federation are provided with increased wages for each hour of work at night time (from 22 o'clock to 6 o'clock) in the amount of 20% of the monthly official salary calculated per hour of work.
Most often, additional payment for night work is made in organizations in which work is carried out in three shifts, in organizations with a continuous production cycle, as well as in workers of professions and positions for which a summarized working time regime is applied.

What is the maximum wage for night work?

The current legislation has not established the maximum amount of increase in wages for work at night, and therefore the employer has the right to establish any amount of increase in wages for work at night that exceeds 20% of the hourly tariff rate (salary (official salary) calculated per hour of work ) for each hour of night work.

How to reflect night work on a timesheet?

Employees' work at night (from 10 p.m. to 6 a.m.) is reflected in the time sheet with the letter code "N" or the digital code "02" indicating the number of hours of actual work at night. If an employee works not only at night, then the hours worked outside the period from 6 to 23 hours are reflected by the letter code “I” or the digital code “01”.

How to make payments when working on a “every three days” work schedule?

An employee who works on a 24/7 schedule should be paid extra for night work. In accordance with the provisions of Art. 154 of the Labor Code of the Russian Federation, each hour of work at night is paid at an increased rate compared to work in normal conditions, but not lower than the amounts established by labor legislation and other regulatory legal acts containing labor law norms. Thus, the increased rate of pay for night hours does not depend on the working hours.
The minimum increases in wages for night work are established by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. The specific amounts of increased wages for work at night are established by a collective agreement, a local regulatory act adopted taking into account the opinion of the representative body of workers, and an employment contract (Article 154 of the Labor Code of the Russian Federation).

How to pay night time pay to an employee if his work time coincides with the clock change?

Let us recall that in accordance with the amendments made by the Federal Law of July 21, 2014 N 248-FZ "On Amendments to the Federal Law "On the Calculation of Time" to the Federal Law of June 3, 2011 N 107-FZ "On the Calculation of Time" "on the territory of the Russian Federation at 2 a.m. on October 26, 2014, a time change occurred in all time zones. The time was moved back an hour.
If an employee of the organization performed work duties from 22.00 to 08.00 on the night of October 25-26, 2014, the employer must pay for the extra hour of work both as night work and as overtime work.
This conclusion was made on the following basis: according to Part 1 of Art. 154 of the Labor Code of the Russian Federation, each hour of work at night is paid at an increased rate compared to work in normal conditions, but not lower than the amounts established by labor legislation and other regulatory legal acts containing labor law norms.
But besides this, due to the time shift back an hour, the employee will actually work 11 hours instead of 10. In this case, the employee will work an extra hour at night.
Thus, an employee of the organization will also work one hour overtime.
Let us turn to the norms of Art. 152 of the Labor Code of the Russian Federation: overtime work is paid for the first two hours of work at least one and a half times the amount. Specific amounts of overtime pay may be determined by a collective agreement, local regulations or an employment contract. At the request of the employee, overtime work, instead of increased pay, can be compensated by providing additional rest time, but not less than the time worked overtime.

Is it possible to fire an employee who refuses to work the night shift?

In the event that the law establishes restrictions for a particular employee on his involvement in night work, the employer does not have the right to force him to do such work. Let us recall that the norms of Part 5 of Art. 96 of the Labor Code of the Russian Federation establishes a category of workers whose involvement in night work is prohibited. These include:
- pregnant women;
- workers under the age of eighteen, with the exception of persons involved in the creation and (or) performance of artistic works, and other categories of workers in accordance with the Labor Code of the Russian Federation and other federal laws.
In addition, the employer may be required to work at night only with their written consent and provided that such work is not prohibited for health reasons in accordance with a medical certificate:
- women with children under three years of age;
- disabled people;
- employees with disabled children;
- workers caring for sick members of their families in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;
- mothers and fathers raising children under the age of five without a spouse;
- as well as guardians of children of the specified age.
The law establishes that such employees must be informed in writing of their right not to go to work at night.
If an employee who refuses to go to work on the night shift belongs to one of the above categories, then the employer cannot attract him to work at night. And even more so, fire this employee for his refusal.
Let's consider a situation where, due to production needs or a change in activity, a new work schedule was introduced. But even in this case, the issue with such an employee will have to be resolved peacefully. Let’s assume that the enterprise’s organizational working conditions were completely changed and a shift work schedule was introduced for the first time, then perhaps the employee could be fired under clause 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties). In this case, the employer would have to complete all stages of the procedure provided for in Art. 74 of the Labor Code of the Russian Federation, including offering vacancies to an employee who refused to work on a shift schedule. But this case would also not lead to the dismissal of the employee. After all, the employee does not refuse to work on a shift schedule, he only refuses to work at night. And this refusal is based on legal grounds.

Is an allowance for work in the Far North calculated in the amount of additional payment for night work?

Since night time is the time from 10 pm to 6 am (Article 96 of the Labor Code of the Russian Federation), each hour of work at night is paid at an increased rate compared to work under normal conditions, but not lower than the amounts established by labor legislation and other regulations legal acts containing labor law norms (Article 154 of the Labor Code of the Russian Federation). At the same time, the minimum increase in wages for work at night is 20% of the hourly tariff rate (salary (official salary) calculated per hour of work) for each hour of work at night. The specific amounts of increased wages for work at night are established by a collective agreement, a local regulatory act adopted taking into account the opinion of the representative body of workers, and an employment contract (Article 154 of the Labor Code of the Russian Federation).
Remuneration for labor in the regions of the Far North and equivalent localities is carried out using regional coefficients and percentage bonuses for the length of service in these regions or localities in addition to wages. Their sizes and procedure for application in accordance with the norms of Art. Art. 315, 316, 317 of the Labor Code of the Russian Federation are established by the Government of the Russian Federation. The amounts of these expenses relate to labor costs in full.
Regional wage coefficients and percentage bonuses for work experience in the Far North and equivalent areas are calculated on the employee’s actual earnings. This actual earnings includes compensation payments, including for work in conditions deviating from normal, related to the work schedule and conditions. Thus, the regional coefficient and percentage bonus must be calculated on the entire salary, including the additional payment for night work established in the organization’s local regulations.

Night or overtime?

How to make payment correctly if overtime work was carried out from 22:00 to 00:00?
In this case, overtime work at night must be paid both as overtime work and as night work. If an employer makes additional payments for overtime work, but has not made additional payments for night work, his actions will be considered unlawful.
Let us remind you that work from 22.00 to 06.00 is considered night time. Each hour of work at night is paid at an increased rate compared to work under normal conditions, but not lower than the amounts established by labor legislation and other regulatory legal acts containing labor law norms.
In this case, overtime work is paid at an increased rate: for the first two hours of work, no less than one and a half times the rate, for subsequent hours - no less than double the rate. At the request of the employee, overtime work, instead of increased pay, can be compensated by providing additional rest time, but not less than the time worked overtime.
As stated in Art. 149 of the Labor Code of the Russian Federation, when performing work in conditions deviating from normal (when performing work of various qualifications, combining professions (positions), overtime work, working at night, weekends and non-working holidays and when performing work in other conditions deviating from normal ), the employee receives appropriate payments provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, and employment contracts. The amounts of payments established by a collective agreement, agreements, local regulations, employment contract cannot be lower than those established by labor legislation and other regulations containing labor law norms.
Thus, additional payments for each of the deviating conditions are made separately and are not mutually exclusive. That is, if hours of work are worked overtime and occur at night, they must be paid according to the rules for both night and overtime work. At the request of the employee, increased payment for overtime work can be replaced by the provision of additional rest time.

Must an employer reimburse an employee's overnight travel costs (or provide transportation to their home)?

Norms Art. 154 of the Labor Code of the Russian Federation, which regulates the procedure for paying for work at night, does not contain any provisions regarding the transportation costs of an employee working at night.
Based on Art. 164 of the Labor Code of the Russian Federation guarantees - means, methods and conditions by which the exercise of the rights granted to employees in the field of social and labor relations is ensured. Compensations are monetary payments established for the purpose of reimbursing employees for costs associated with the performance of their labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws.
By virtue of Art. 8 of the Labor Code of the Russian Federation, employers, with the exception of employers - individuals who are not individual entrepreneurs, adopt local regulations containing labor law norms (hereinafter referred to as local regulations), within their competence in accordance with labor legislation and other regulations containing labor law norms, collective agreements, agreements.
Norms of local regulations that worsen the situation of workers in comparison with established labor legislation and other regulations containing labor law norms, collective agreements, agreements, as well as local regulations adopted without compliance with the established Art. 372 of the Labor Code of the Russian Federation, the procedure for taking into account the opinions of the representative body of employees, are not subject to application. In such cases, labor legislation and other regulatory legal acts containing labor law norms, collective agreements, and agreements are applied.
Labor legislation does not provide for such types of guarantees or compensation as reimbursement of the cost of travel to an employee at night (or providing him with transportation to his home).
The solution to the issue of reimbursement of an employee’s transportation expenses to and from work, including for delivery at night, is possible at the level of local regulation, that is, it must be determined in the local regulatory legal act of the employer. Thus, the employer is not obliged to reimburse the cost of travel to the employee at night, except when this is established by the relevant local regulatory legal act.

How to document the involvement of an employee in night work?

When resolving this issue, you should first of all pay attention to the mode in which the employee of the organization works. For example, if he was hired for a position that required working at night, this fact should be reflected in his employment contract. Additionally, the employment contract can include a condition that the employee agrees to be hired to work at night. If all these nuances are provided for in the employment contract, there is no need to additionally issue a notice of the right to refuse work at night. Or, if an employee works in shift work and some of his shifts fall at night, the procedure for registering work at night will be the same - you need to include a provision for night work in the employment contract.
In the event that an employee’s work schedule changes, that is, he is transferred to work at night and this work will be of a permanent nature, it is worth concluding an additional agreement with him to the employment contract, which specifies the conditions for working at night.
Otherwise, for example, if night work for an individual employee is, so to speak, one-time in nature (production necessity, replacing an absent employee), then it is worth issuing a notification in a separate document.

Example.

Limited Liability Company "Volgaspetsmontazh"
LLC "Volgaspetsmontazh"

Notice No. 14 to the Installer
dated 05/16/2015 to S.A. Matveev

Dear Sergey Anatolyevich!

We inform you of the need to involve you in work at night from 23.00 on May 18, 2015 to 03.00 on May 19, 2015.
In accordance with Art. 96 of the Labor Code, you have the right to refuse to perform work at night. We ask you to express your agreement or disagreement with this work.

Director Vaskanov A.A. Vaskanov

I am familiar with the right to refuse to work on the night shift:
Matveev 05/16/2015
I agree to being hired to work at night.
Matveev 05/16/2015

Like any similar document, it is recommended that the notice be drawn up in two copies, one of which is given to the employee, and the second, with the employee’s mark, remains with the employer.
What should an employer do if, when hiring, an employee hid the fact that he is disabled or, for example, has a disabled child? The law does not establish an employee’s obligation to provide such information. Article 65 of the Labor Code of the Russian Federation establishes a list of documents that must be presented to the employer when concluding an employment contract; thus, the employer does not have the right to request such information from each candidate. The employee is not responsible for failure to provide information and circumstances with which labor legislation binds the provision of guarantees and compensation.
In accordance with Art. 73 of the Labor Code of the Russian Federation, if during his working life an employee wants to exercise the right to refuse to perform duties at night for health reasons and submits a medical report or a rehabilitation program for a disabled person, the employer will be obliged to transfer him to another available job that is not contraindicated for him due to health reasons.

Is it possible to transfer an employee to work night shifts?

Let us turn to the norms of Art. 103 of the Labor Code of the Russian Federation, according to which shift work - work in two, three or four shifts - is introduced in cases where the duration of the production process exceeds the permissible duration of daily work, as well as in order to more efficiently use equipment, increase the volume of output or services provided.
When working in shifts, each group of employees must work during the established working hours in accordance with the shift schedule, which is brought to the attention of employees no later than one month before implementation.
To transfer an employee to work on the night shift, you can follow Art. 72 of the Labor Code of the Russian Federation, according to which changes in the terms of the employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract. An agreement to change the terms of the contract determined by the parties is concluded in writing. It is worth noting that the use of Art. 72 of the Labor Code is relevant in this situation if the employee agrees to the transfer.
What if an employee refuses to be transferred to the night shift? In this situation, it is necessary to use the provisions of Art. 74 of the Labor Code of the Russian Federation, namely, notify in writing at least two months in advance of the upcoming change in working conditions. If the employee does not agree to work under the new conditions, the employer offers him in writing another available job that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer all vacancies available in the given area that meet the specified requirements. If there is no such work or the employee refuses the proposed employment contract, the employment contract is terminated under clause 7, part 1, art. 77 Labor Code of the Russian Federation.

Night work is considered to be work from 10 pm to 6 am. The shift of employees who work at night is shortened by an hour (part two of Article 96 of the Labor Code of the Russian Federation). However, there are cases when the duration of the night shift is not reduced (it is equal to the day shift). This is possible if:

• the employee has been given reduced working hours;
• the employee was hired specifically to work at night;
• need to work at night and day shift were equal in terms of working conditions. For example, if production is continuous and cannot be stopped;
• employees work in shifts with a six-day week with one day off (Article 96 of the Labor Code of the Russian Federation). The list of jobs that are not subject to the rule on reducing night time must be included in the collective agreement or other local document of the company.

If night work is reduced by an hour, must the employee subsequently work that hour in order to maintain the weekly working hours (40 hours)?

If, by law, an employee has the right to a shortened night shift, he does not have to work anything afterwards. In the Labor Code of the Russian Federation, this issue is resolved in Article 96.

In addition, you can be guided by the explanation of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated May 7, 1987 No. 14/14-38 on the procedure for applying additional payments and providing additional leave for work on evening and night shifts, provided for by the resolution of the Central Committee of the CPSU, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions dated 12 February 1987 No. 194." This document is still used to the extent that it does not contradict the Labor Code of the Russian Federation (Article 423 of the Labor Code of the Russian Federation). It says that no work is allowed for shortening the night shift.

Any employee can be involved in night shift work, except:

• pregnant women;
• employees under 18 years of age.

The above does not apply to actors, singers, journalists and other creative employees listed in Part 6 of Article 96 of the Labor Code of the Russian Federation.

The following employees can be involved in night work if: work at night is not contraindicated for health reasons:

• women with children under three years of age;
• disabled people;
• employees with disabled children;
• employees caring for sick family members;
• single parents (guardians) raising children under five years of age (part five of Article 96 of the Labor Code of the Russian Federation). Before engaging such employees to work at night, their written consent must be obtained.

The Labor Code of the Russian Federation does not say exactly how to formalize an employee’s consent to work at night. Therefore, in practice, two methods are used. First, the employee writes a statement of consent to such work. Second, the employee is sent a written notice, on which he writes by hand: lna attraction to work at night agree".

In some cases, notification in the form of a separate document may not be issued.

If you are hiring a disabled person, single parent, etc. specifically to work the night shift, do so. In the text of the employment contract, indicate: the employee is notified of the right to refuse work at night.” In such a case, the written notice requirements are met. And the employee’s signature on the contract will prove his consent to night work.

Where is the list of diseases for which an employee cannot be required to work on the night shift?

There is no such list in the legislation. If an employee believes that he cannot work the night shift, he must provide documents confirming this. This may be the conclusion of the VTEC (medical and social examination) commission. The conclusion (certificate) must state that the employee is prohibited from working on the night shift. At the same time, if night shifts were agreed upon when hiring, the company administration must transfer the employee to another job (Article 73 of the Labor Code of the Russian Federation).

Is it necessary to issue a notice of the right to refuse night work if only part of the shift is at night?

Yes need. The legislation does not say that in order to be recognized as night work, an employee must work from 10 pm to 6 am (Article 96 of the Labor Code of the Russian Federation). Therefore, if only part of a shift occurs at night, that part is considered night work.

How to apply for a night shift job

As a rule, the requirement to work at night is specified when applying for a job. In this case, to attract night work, an employment contract, shift schedule, etc. is sufficient. Special order to engage in night work not needed. This conclusion can be drawn, firstly, from Article 96 of the Labor Code of the Russian Federation (where the order is not listed among the documents required when processing night work). And secondly, the provisions of Article 57 of the Labor Code of the Russian Federation (it states that the employee’s work and rest schedule must be specified in the employment contract).

If an employee works at night after the end of his shift (due to production needs), the situation changes. Such work must be formalized in the same way as any overtime work, that is, obtain the written consent of the employee and issue night work order(see chapter “Overtime work”).

How to apply for employment at night on a holiday?

The Labor Code of the Russian Federation does not establish special rules regarding employment at night on a holiday. Therefore, in this case you will have to issue:

• firstly, all the documents that are required to be hired to work on a holiday (see chapter “Working on weekends and holidays”);
• secondly, notification of the right to refuse work at night (for employees listed in part five of Article 96 of the Labor Code of the Russian Federation).

How to pay for night work

Each hour of work at night must be paid at an increased rate, but not lower than the amounts established by laws and other regulatory legal acts (Article 154 of the Labor Code of the Russian Federation). Employees hired specifically to work at night are not paid additionally. For them, the issue of reimbursement (compensation) for payment in conditions different from usual ones is decided when charging the work, that is, taking into account not only the complexity, but also the conditions of the work performed.

What is the minimum amount of extra pay for night work?

There is currently no general rule on the amount of overnight surcharges in the legislation. Previously, the minimum size was determined by paragraph 9 of the resolution of the Council of Ministers of the USSR and the All-Russian Central Council of Trade Unions of February 12, 1987 No. 194 on the transition of associations, enterprises and organizations of industry and other sectors of the national economy to a multi-shift operating mode in order to increase production efficiency.” In accordance with this clause, the additional payment for each hour of work at night was determined in the amount of 40 percent of the rate (salary).

However, by decision of the Supreme Court of the Russian Federation of May 21, 2002 No. GKPI 2002-353, this norm was canceled. Now the company must determine the amount of additional payments independently, taking into account the opinion of the representative body of employees (Article 154 of the Labor Code of the Russian Federation). For certain categories of employees, industry regulations may provide for a specific amount of additional payments.

Employees	Amount of surcharge	Normative act
1	2	3
Workers engaged in underground work in the coal industry, in the operation of equipment at power plants, electrical and heating networks, boiler houses in the electric power industry, as well as workers receiving monthly salaries and junior service personnel in all industries	20 percent of the hourly tariff rate (salary) for each hour of work at night	Resolution of the Council of Ministers of the USSR of November 16, 1972 No. 822 on increasing additional wages for industrial workers for night work"
Workers in the baking and textile industries	50 percent of the hourly tariff rate (salary) for each hour of work at night	Resolution of the Council of Ministers of the USSR of November 16, 1972 No. 822 on increasing additional wages for industrial workers for night work"
Workers of paramilitary, professional fire and security guards		Resolution of the State Committee for Labor of the USSR and the All-Russian Central Council of Trade Unions of August 6, 1990 No. 313/14-9 l On remuneration of security workers at night"
Workers of road transport enterprises	35 percent of the hourly tariff rate (salary) for each hour of work at night	Order of the Council of Ministers of the RSFSR dated September 6, 1991. No. 985-r On establishing additional pay for overtime work for road transport workers"

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