In this article you will find:
This is one of the types of leaves provided for by the Labor Code, in particular Article 128. In most cases, we are talking about leaves that are provided at the request of employees. In certain situations and for certain categories of employees, the employer is obliged to provide leave without pay. In the article you will find out who this concerns.
I urgently need to go on vacation: do I have to go on vacation?
What if you need to go on vacation starting tomorrow? Is the employer obligated to let go? How can I pay for my vacation in this case?
The employer is obliged to give employees who are listed in Part 2 of Article 128 of the Labor Code of the Russian Federation this:
The Labor Code, other federal laws or a collective agreement may provide for other cases when the employer is obliged to provide leave without pay. For example, Part 2 of Article 173 of the Labor Code of the Russian Federation lists the categories of employees to whom the employer is obliged to provide leave without pay in connection with admission to higher education institutions vocational education and training in them are:
Part 2 of Article 174 of the Labor Code of the Russian Federation lists the employees to whom the employer is obliged to provide leave without pay in connection with admission to educational institutions of secondary vocational education and training in them, these are:
Part 2 of Article 286 of the Labor Code of the Russian Federation stipulates that if in a part-time job the duration of an employee’s annual paid leave is less than the duration of leave at the main place of work, then the employer, at the request of the employee, provides him with leave without pay for the corresponding duration.
The current legislation does not define the grounds for refusing to grant leave without pay to the named categories of workers.
For family reasons and others good reasons an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer (Part 1 of Article 128 of the Labor Code of the Russian Federation). Here is a sample of such a statement.
When considering applications, attention is paid to the specific circumstances that caused the need for such leave. After all, granting leave without pay on the basis of Part 1 of Article 128 of the Labor Code of the Russian Federation is a right, and not an obligation, of the employer, therefore he has the right to refuse to grant it to an employee. In this case, the employer must take into account both the validity of the reasons indicated by the employee in the application, and the possibility of causing harm to the organization if leave is granted.
In cases where the employer is obliged to provide leave without pay, the employee is also required to submit a statement
It is mandatory to indicate an appropriate valid reason in a leave application without containing it, although this affects the private life of the employee. Information that has become known to the employer is the employee’s personal data. Therefore, their storage, processing and use must be carried out in accordance with the requirements of Chapter 14 of the Labor Code of the Russian Federation, Federal Law dated July 27, 2006 No. 152-FZ “On Personal Data” and other federal laws
Family circumstances and other valid target="_blank" means certain events and social needs that arose in the personal life of the employee. An employer cannot send an employee on leave without pay on his own initiative.
Persons caring for children may be granted additional leave without pay if this is provided for in the collective agreement (Article 263 of the Labor Code of the Russian Federation)
Besides Labor Code, the employer’s obligation to provide unpaid leave to certain employees is established in the following federal laws:
Leave without pay is granted to an employee based on an application. In it, he indicates the start date and duration of the vacation, as well as the circumstances due to which he needs this vacation. Along with the application, you can submit documents (copies thereof) confirming the circumstances specified in it.
The employer's consent to provide such leave is formalized by order (instruction) in form No. T-6. The employee must be familiarized with it against signature. The order (instruction) should indicate:
Information about the vacation granted is entered into the employee’s personal card (Form No. T-2 1) and the working time sheet (Form No. T-12 or T-13 1).
1: These unified forms were approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
In the report card, the time of leave without pay is marked with the code “DO” if the leave was granted in accordance with the employer’s permission, or with the code “OZ” if the employee goes on leave based on the provisions current legislation RF 2.
2: Such symbols are given in the working time sheet in form No. T-12.
The duration of unpaid leave for family reasons and other valid reasons is determined by agreement between the employee and the employer.
The duration of leave without pay if the employer is obliged to provide it is determined by the federal law that provides for such leave. Maximum period of leave without pay in 2019 according to the Labor Code of the Russian Federation we have given in the table below.
An employee can interrupt his vacation at any time without saving pay. In addition, such leave is granted without connection with other leaves.
Time provided at the request of the employee leaves without pay, not exceeding 14 calendar days during the working year is included in the length of service giving the right to annual basic paid leave (Article 121 of the Labor Code of the Russian Federation). And if the duration of leave without pay exceeds 14 calendar days during the working year, then this period is not included in the specified length of service. This means that the end date of the working year for which the employee is granted annual paid leave will be postponed by the corresponding number of days of unpaid leave.
An employer, on its own initiative, cannot send employees on leave at its own expense due to the lack of work specified in the employment contract. Indeed, according to Article 128 of the Labor Code of the Russian Federation, such leave is granted only on the basis of an application from the employee, which indicates reasons of an exclusively personal nature.
Forced placement on administrative leave is a violation of labor legislation, for which, according to Article 5.27 of the Administrative Code of the Russian Federation, an administrative fine is provided:
Violation of labor and labor protection laws official previously subjected to administrative punishment for a similar administrative offense, entails disqualification for a period of one to three years.
If the employer is unable to provide the workforce with work, he is obliged to record downtime, the time of which, according to Article 157 of the Labor Code of the Russian Federation, the employee must be paid. Moreover, downtime due to the employer’s fault is paid in the amount of at least two-thirds of the employee’s average salary. And downtime due to reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate, salary ( official salary), calculated proportionally to the downtime
Example 1
Let’s say, for the purposes of providing annual paid leave, the working year of employee V.V. Petrova lasts from November 1, 2018 to October 31, 2019. During the working year, the employee took leave without pay four times: from April 6 to 10, from May 18 to 27, from June 15 to 17 and from July 6 to 9 - a total of 22 calendar days. If he had not gone on leave at his own expense, he would have received such a right to the next paid leave from November 1, 2019. But since the duration of unpaid leave during the working year exceeded 14 calendar days, its end date shifted by 8 calendar days (22 days - 14 days). Therefore, this employee will have the right to annual paid leave from November 9, 2019. The next working year for I.I. Ivanova will begin not on November 1, but on November 9, 2019.
Thus, if the total duration of unpaid leave during the working year for an employee was more than 14 calendar days, then when calculating the length of service giving the right to annual paid leave, calendar days starting from the 15th are not taken into account.
The time of unpaid leave provided at the request of the employee may be included in the length of service giving the right to annual basic paid leave within 14 calendar days during the working year (Article 121 of the Labor Code of the Russian Federation)
Example 2
Manager I.I. Ivanov has been working at Delta LLC since February 20, 2019. In 2013, he was granted leave at his own expense four times: from April 6 to 10, from May 18 to 27, from June 15 to 17 and from July 6 to 9 - a total of 22 calendar days. And on August 10, 2019, I.I. Ivanov resigned of his own free will.
The accountant of Delta LLC determined the number of days of paid leave for which compensation is due as follows.
The manager worked in the organization from February 20 to August 10, 2019, which is 5 months 19 days. He was on leave without pay during the specified period for 22 calendar days, while 8 calendar days (22 days - 14 days) must be excluded from the length of service giving the right to leave. Therefore, the length of service giving the right to leave will be 5 months 11 days.
When calculating periods of work that give the right to proportional additional leave or compensation for leave upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to at least half a month are rounded up to a full month. This is established by paragraph 35 of the Rules on regular and additional holidays, approved by the USSR People's Commissariat of Labor on April 30, 1930 No. 169 (applied to the extent that does not contradict the Labor Code of the Russian Federation). Taking into account this rule, as well as the provisions of Part 1 of Article 423 of the Labor Code of the Russian Federation, compensation must be paid within 5 months.
The number of vacation days not used during work in the organization is determined based on the calculation of 2.33 days of vacation for 1 month (letters of Rostrud dated July 26, 2006 No. 1133-6 and dated June 23, 2006 No. 944-6).
In the situation under consideration, the number of vacation days for which compensation is due is 11.65 days (2.33 days x 5 months).
| Employees who are required to take unpaid leave | Duration of vacation |
|---|---|
| Participants of the Great Patriotic War | Up to 35 calendar days per year |
| Working old-age pensioners (by age) | |
| Parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received during the performance of military service duties, or as a result of an illness associated with military service | Up to 14 calendar days per year |
| Working disabled people | Up to 60 calendar days per year |
| Employees in cases of birth of a child, registration of marriage, death of close relatives | Up to 5 calendar days for each reason |
| Employees admitted to entrance examinations in educational institutions of higher professional education | 15 calendar days |
| Workers - students of preparatory departments of educational institutions of higher professional education in case of passing final exams | 15 calendar days |
| Employees studying in state-accredited educational institutions of higher professional education on a full-time basis, combining study with work, in the following cases: | 15 calendar days in an academic year 4 months |
| 1 month | |
| - passing final state exams | |
| Employees admitted to entrance examinations at state-accredited educational institutions of secondary vocational education | 10 calendar days |
| Employees studying in state-accredited educational institutions of secondary vocational education on a full-time basis, combining study with work, in the following cases: | 10 calendar days in the academic year 2 months |
| - passing intermediate certification; | 1 month |
| - preparation and defense of graduation qualifying work and passing final state exams; | |
| - passing final exams | |
| Part-time workers whose duration of annual paid leave is less than the duration of leave at their main place of work | Difference in calendar days between vacation durations |
Days unpaid leave are completely excluded from the calculation period when calculating average earnings, regardless of its duration. The basis is subparagraph “e” of paragraph 5 of the Regulations on the specifics of the procedure for calculating the average salary, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter referred to as the Regulations).
Example 3
Let's use the data from example 2. Salary of the manager of Delta LLC I.I. Ivanova for the period from February 20 to July 31, 2019 amounted to 92,000 rubles. The employee worked a five-day work week. Average daily earnings for payment of compensation for unused vacation calculated for the last 12 calendar months (parts 2 and 3 of article 139 of the Labor Code of the Russian Federation and clauses 2 and 4 of the Regulations). In this case, the amount of wages accrued for the billing period is divided by 12 and 29.4 (the average monthly number of calendar days) (Article 139 of the Labor Code of the Russian Federation and clause 10 of the Regulations). However, I.I. During the billing period, Ivanov was on leave without pay. Therefore, his average daily earnings are calculated in the following order. The amount of actually accrued wages for the billing period must be divided by the sum of the average monthly number of calendar days (29.4), multiplied by the number of fully worked calendar months, and the number of calendar days in incompletely worked calendar months. Moreover, the number of calendar days in an incompletely worked calendar month is calculated by dividing the average monthly number of calendar days (29.4) by the number of calendar days of this month and multiplying by the number of calendar days falling on the time worked in a given month (paragraphs 2 and 3 p. . 10 Regulations).
Thus, the average daily earnings of a manager at Delta LLC will be 679.77 rubles. , where 28 days, 30 days, 31 days, 30 days, 31 days. - the number of calendar days in February, April, May, June and July 2009, respectively, a 9 days, 25 days, 21 days, 27 days, 27 days. - the number of calendar days worked in February, April, May, June and July, respectively.
The amount of compensation for unused vacation for 11.65 days amounted to 7919.32 rubles. (679.77 rub. ? 11.65 days).
Vacations without pay, which are mandatory for certain categories of employees on the basis of Part 2 of Article 128 of the Labor Code of the Russian Federation, are included in the length of service, which gives the right to annual paid vacations regardless of duration.
The period when the employee was on leave without pay cannot be included in his insurance period taken into account when assigning a pension. After all, the insurance period includes periods of work for which insurance contributions were paid to the Pension Fund (Clause 1, Article 10 of the Federal Law of December 17, 2001 No. 173-FZ “On Labor Pensions in the Russian Federation”).
If the employee was on vacation at his own expense, did not work, did not receive a salary, the employer cannot calculate and pay insurance contributions to the Pension Fund for this time.
As a rule, an employee cannot be dismissed at the initiative of the employer during his stay on such leave. Since, according to Article 81 of the Labor Code of the Russian Federation, an employee cannot be dismissed at the initiative of the employer while he is on vacation, with the exception of the case of liquidation of the organization or termination of activities by an individual entrepreneur.
During unpaid leave, the employee, as a rule, retains his place of work (position) (Article 81 of the Labor Code of the Russian Federation)
If an employee of an organization, while on leave without pay, got sick and brought a sick note, That the organization is not obliged to pay him temporary disability benefits. After all, this benefit is not assigned to the insured person for the period of his release from work with full or partial retention of wages or without payment in accordance with the legislation of the Russian Federation. Of course, with the exception of cases of loss of ability by the employee due to illness or injury during the period of annual paid leave. This is stated in subparagraph 1 of paragraph 1 of Article 9 of the Federal Law of December 29, 2006 No. 255-FZ.
If during vacation without pay the employee went on maternity leave, then the employer is obliged to pay her maternity benefits, since the employee is one of the insured persons. Moreover, unpaid leave must be interrupted from the moment maternity leave begins. Maternity benefits are paid to the employee in the amount of 100% of average earnings (Clause 1, Article 11 of the Federal Law of December 29, 2006 No. 255-FZ).
If the employee does not have actually accrued wages and actually worked days in the pay period and before it, the average earnings must be calculated based on the official salary, the tariff rate established for the category of the employee, the official salary, monetary allowance(rewards). Reason - clause 11 of the Regulations on the specifics of the procedure for calculating benefits for temporary disability, pregnancy and childbirth for citizens subject to compulsory social insurance, approved by Decree of the Government of the Russian Federation of June 15, 2007 No. 375 4.
During the time when the employee was on unpaid leave, he has the right to standard tax deductions provided for in Article 218 of the Tax Code of the Russian Federation. After all, these deductions are provided to the taxpayer for each month of the tax period by reducing the tax base in each month of the tax period by the corresponding established amount of the deduction. If in certain months the taxpayer had no income at all, standard tax deductions accumulate from the beginning of the tax period.
Society with limited liability can be registered by one or several persons. If the founder is the only one, then he expresses his intention to create a company in a sole decision. If there are several partners, then before opening the LLC they must meet at a general meeting.
While the limited liability company has not yet been created, future partners have the status of founders. That is why the first document directly related to the company is called “minutes of the meeting of founders on the creation of an LLC.”
After registration of the company, the partners from the founders switch to the status of LLC participants. In the future, general meetings of participants should be held on all important issues of activity, but at least once a year. All these meetings must be recorded, but as meetings of participants.
So the protocol general meeting LLC founders registration is issued only once - at the stage of creating the company.
The procedure for holding a general meeting of participants is discussed in several articles Civil Code and the Law “On Limited Liability Companies”. The meeting of participants is the highest governing body of the company and is competent to make decisions on the main issues of the LLC’s activities.
The LLC Law also determines how many votes of participants can make decisions on certain issues:
Who signs the minutes of the general meeting of LLC participants is stated in Article 181.2 of the Civil Code of the Russian Federation. According to this norm, the minutes must be certified by the signatures of the chairman and secretary of the meeting.
Since September 1, 2014, the norm of notarization of all minutes of the general meeting of participants has been in effect. At the same time, those gathered have the right to choose another mandatory method of recording decisions, which will allow them to save on notary services. This could be an audio and video recording of a meeting or the signing of a document by all LLC participants.
As for the first meeting of founders, the law does not provide for special norms for it, however, the minutes in this case are drawn up in the same way as for meetings of participants.
A document confirming the fact of a meeting of founders of a limited liability company must contain the following information:
At their first general meeting, future partners must clearly express their intention to register commercial organization. This issue should be first on the agenda.
In addition, the minutes of the meeting of founders should include the decisions of those present on a number of important issues.
For each item on the agenda, voting results must be summed up. At the first general meeting of owners, all issues are adopted only unanimously. The protocol is sealed with the signatures of all founders.
In this material you will find instructions on how to write minutes of the general meeting of LLC founders
Create minutes of the founders' meeting online
In the process of creating an LLC, one of the most important documents is the minutes of the founders’ meeting. It is necessary if the company has several owners. Such a document is created only once, and it is extremely important to adhere to certain rules and mechanisms when producing it.
In this article we will answer the question “how to draw up the minutes of the meeting of founders” so that it cannot be challenged or refused when registering an LLC.
From a legal point of view, there are differences:
For the document to have full legal force, the title must begin with the words “Minutes No. 1 of the general meeting of founders of the Limited Liability Company” and must be followed by the full name of the company.
The date of the document is indicated based on the time of the meeting, and not at the moment when the minutes themselves were drawn up. It is usually placed on the next line after the word “PROTOCOL” or before a special delimiter line.
After the date and number, you must indicate the place where the meeting took place. When indicating a settlement, you can use abbreviations: city - city, region - region. and so on.
In accordance with Art. 181.2. The Civil Code of the Russian Federation must necessarily indicate in the minutes of the general meeting:
Sample protocol header:
PROTOCOL No. 1
General meeting of founders
Limited liability companies ""
(hereinafter - the Society)
February 12, 2018
Date of the general meeting – February 12, 2018
Form of holding a general meeting – meeting (joint presence)
The chairman of the general meeting is __________
Secretary of the general meeting – __________
Sample list of founders
The main text of the protocol consists of two parts. The first is an introductory one, filled out strictly according to the sample. The second - the main one is drawn up in free form.
In the introductory part of the text, it is necessary to indicate information about the composition of the founders who took part in the meeting, as well as the agenda. First, information about the chairman of the general meeting and the secretary of the meeting is indicated, as well as separately about the person who counted the votes, after which all the founders are indicated through the word “Present.” You need to write: their last names, first names, patronymics, passport details and registration addresses. If we are talking about legal entity, then indicate: the name of the organization, INN, OGRN, as well as the details of the company representative.
Create a protocol in 15 minutes
The agenda is also written down in the document, and after these words there is a numbered list of issues that were discussed at the meeting. There are certain rules here:
The main part of the text consists of several blocks, which go in a certain order: “Listen”, “Speech”, “Resolved”, “Voted”.
In the “Listen” block, you need to indicate the position, surname and initials of the main speaker in the genitive case. Then you can briefly summarize the essence of the report itself. If the speech is large and voluminous, then it can be formatted separately.
The “Speakers” block indicates the names and initials of the speakers. Their reports can be summarized using a dash.
The “Resolved” block indicates the decisions made.
In the minutes of the meeting of LLC founders, the main points are:
At every point this list specific actions must be specified. If there are several resolutions in the issue, then they should be divided into subparagraphs: “1.1”, “1.2” and others.
All decisions are made unanimously, with the exception of decisions on the election of the company’s management bodies, the formation of an audit commission or the election of the company’s auditor and the approval of the company’s auditor, which are carried out by a majority of at least three-quarters of the votes of the total number of votes of the company’s founders.
Sample agenda:
AGENDAS
1. Election of the chairman and secretary of the general meeting of founders and assignment of duties for counting votes.
2. Establishment of a limited liability company "".
Sample design for the "Decided" block
DECIDED
On the second item on the agenda -
2. Establishment of a limited liability company "".
The founders were present Limited Liability Company "______________________"(hereinafter referred to as the “Society”):
Limited Liability Company "________________" (LLC "________________", OGRN ______________, INN ______________, KPP ______________, location address: index, city ________, street __________, building ____, office _______) represented by ___________ [job title] acting on the basis of the Charter - the chairman of the meeting;
- _________________________________ [full name](passport of a citizen of the Russian Federation 00 00 No. 000000, issued ____________________________ xx.xx.20xx, division code 000-000, registered at the address: index, city ________, st. __________, building ____, apt. ____) - secretary of the meeting .
1. Establishment of the Company and approval of its organizational and legal form.
2. Approval of the Company.
3. Approval of the size, size and nominal value of the shares of the Company, the founders of the Company in the authorized capital.
4. Approval of the Company.
5. Purpose of the Company.
6. Approval of order joint activities founders to create a legal entity.
DECIDED: Establish a commercial organization in the form of a Limited Liability Company.
DECIDED:
1) approve the full corporate name of the Company:
in Russian - Limited Liability Company "______________________";
2) approve the abbreviated corporate name of the Company:
in Russian - LLC "______________________";
3) approve the following address of the location of the Company: index, ________, st. __________, d. ____, office. _______.
DECIDED:
1) approve the authorized capital of the Company in the amount of , contribution of the authorized capital in cash and shares of founders in the following amounts:
Share _________________________________ [full name] in the amount of xx% of the authorized capital of the Company, nominal value __________ (amount in words) rubles rubles;
Share of LLC "________________" in the amount of xx% of the authorized capital of the Company, nominal value __________ (amount in words) rubles rubles
2) determine the following procedure and terms of payment for the shares of the founders of the Company in the authorized capital:
Each founder of the company must pay in full his share in the authorized capital of the Company within four months from the date of state registration of the Company.
DECIDED: Approve the Company's Charter in the current version.
DECIDED: Appoint to position _________________ Societies _________________________________ [full name]. Conclude an employment contract with _________________________________ [last name and initials] for a period ____ (number in words) years/year from the date of state registration of the Company. Signs the employment contract on behalf of the Company _________________________________ [full name].
DECIDED:
1) Instruct to prepare and submit documents for state registration of the Company_________________________________ [full name].
2) pay the costs associated with notarization of the founder’s signature in the application in form P11001 to each founder independently;
3) oblige the founder who does not fulfill or improperly fulfills his obligations to create the Company to compensate other founders for losses caused;
4) affirm that notarization of the founders’ signatures is not required in this decision.
Compliance of the protocol with the sample presented above will help you avoid annoying mistakes when registering an LLC, but often regional tax authorities may present specific requirements, not explicitly specified in the legislation, therefore a service is now available specifically for our users free check documents for business registration by 1C specialists.
