Four ways to replace vacation with money. How to replace unused vacation with money. How to take into account compensation in expenses and whether it is necessary to pay personal income tax and contributions from it

Valeria K. recently got a job as a personnel officer in new company... The organization is solid, "friends" with the law. But then summer came, and Valeria discovered that this company also had problems. Holidays. Many workers have already accumulated two or even three vacations. And for some, the annual leave is not even 28 days, but more - the collective agreement establishes an additional leave for continuous work experience in the company. Valeria made a list of employees who had accumulated leave over the past years, and went to the management. Meanwhile, I went to the director chief Engineer... Valeria briefly outlined the situation and offered to provide everyone with the accumulated vacation. But the director just laughed, and the chief engineer categorically opposed it. During the year before last, he himself did not use the entire vacation. And when will he "go for a walk"? Either they bring new equipment, or they fill it up with orders. There is no time to rest and chill - spent two weeks with my family at sea, and again to work. Here vacations are piled up. The director thought about it and ordered to pay everyone compensation for them. Valeria knows that not everything is so simple, but the director's order must be executed. And there seems to be a way ...

It is very common for workers to accumulate vacations. Someone cannot imagine life without their favorite work and he categorically refuses to rest. Someone is highly valued by the management and will never agree to sign a statement even for two weeks of vacation. And the employee himself does not seem to mind "taking money." It would seem, what is the problem, since both sides agree? But the law is against it, and the GIT is very fond of checking this “direction”.

Vacation: granted by law

The right to paid annual leave is guaranteed to all workers in labor contract Constitution of the Russian Federation ( art. 37). Following her and Labor Code RF (hereinafter referred to as the Labor Code of the RF) states: "Paid leave should be provided to the employee annually" ( art. 122).

Yes, the law provides an option to reschedule vacation. But only in exceptional cases and without abuse ( tab.).

DO NOT!

To carry over to the next working year the annual paid leave for employees under the age of 18 and employees employed in jobs with harmful and (or) dangerous working conditions

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

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

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

Postponement of vacation for another period

DO NOT!

Not granting leave for two consecutive years

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

Replacing vacation with money, regardless of whether it is basic or additional and for what period it has been accumulated, without any restrictions, it is possible only in one case - when an employee is fired ( art. 127 of the Labor Code of the Russian Federation) .

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

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

These prohibitions, of course, do not apply to cases of payment of monetary compensation for unused leave when these workers are dismissed. Since, in addition to the obligation to comply with the right of workers to rest, the law contains strict requirements for payments upon dismissal.

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

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

And you can do that ...

Perhaps, in the situation under consideration, it is possible to offer even more than one way to solve the problem.

Method 1

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

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

It is possible that the employee may simply be afraid of being fired, fearing that, even promising, you will not take him back to work later. But this is easy to settle. Depending on the reason for the termination of the employment contract (at the initiative of the employee or by agreement of the parties), offer the employee, simultaneously with the application for dismissal or the agreement to terminate the employment contract (which, by the way, is preferable), to sign a new employment contract by handing it over copy to the employee. For the employee, this will be a guarantee that in the end he will not be left “overboard”.

Method 2

You can not resort to the dismissal of an employee. Provide the employee with the appropriate vacation in the amount that has "accumulated" at the moment. And for this period, conclude a civil contract with him (for example, a work contract or the provision of services).

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

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

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

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

IN THE SAME TIME...

And how are they?

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

From the results of a survey of residents of Washington, it can be seen that most of the rest takes 2-3 weeks. In order for an employee of an average or large American company to get a 3-week vacation, he first needs to work for 5 years, and for a month already someone who has worked in the company for 15-20 years has been “walking”. Interestingly, business owners have less rest than their employees - an average of 6 working days a year. 13% of American companies do not pay leave for their staff.

Polls show that Americans, on the one hand, would like to have more rest, and on the other, their top priorities include wages, health insurance, quality of work, and only then vacation. Most employees are willing to sacrifice their vacation to keep their jobs.

It becomes clear why it was in the United States that a special term first appeared - "Vacation Deprivation Syndrome". What is the danger of the new syndrome?

The American Psychosomatic Society conducted a special study, as a result of which it was concluded that annual leave reduces the risk of death by 20%. Dr. Stephen Lamm, author of The Look, writes: “Constantly getting stressed at work and not being able to get enough rest, you are literally poisoning your body. It is under the influence of carcinogens that can cause heart attacks, strokes, cancer and other serious health problems. " Diane Fussell, author of We Work Until We Die, concluded that the life expectancy of an American workaholic is less than that of a heavy drinker.

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

Many employees are asked by the management to keep in touch with the office, while others feel guilty about having gone to rest. Fortunately, holidays are not so bad in other countries. So, the Swiss are supposed to rest 32 working days, Danes, French, Austrians and Spaniards -30, Irish - 28, Portuguese - 27, Dutch - 25, Belgians - 24, Norwegians - 21, Germans - 18 working days.

4. Do not tie the work under the contract to any local acts organization (rules of internal work schedule, regulations on wages, staffing table etc.). About any discipline of work, mode of work, disciplinary responsibility in this case, there can be no question. There will be no material responsibility either.

5. The contract must specify the deadline for the work. A work contract, in contrast to a labor contract, is always urgent.

6. The results of the work must be formalized by an act.

7. Working hours under a contract should not be included in the time sheet.

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

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

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

Every hired citizen is guaranteed the right to rest by the Labor Code of the Russian Federation, and it is realized by providing paid leave... An employee has the opportunity to go on main vacation after six months of continuous work with one employer, while he is given a vacation 28 calendar days per year.

But, besides it, there is also an extended (additional) vacation, to which certain categories of citizens are entitled. If, for any reason, the employee does not want to rest on the proposed days, he has the right to compensation for unused (unused) vacation.

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Can you always get it?

Every employee who has worked continuously for one employer for six months has the right to the main vacation of 28 days, which is regulated by Article 114 of the Labor Code.

In addition, article 115 may provide workers with extended vacation that lasts more than 28 days... The categories of citizens listed in Article 116 of the Labor Code have the right to it, for example:

• having irregular working hours;
• employed in hazardous or harmful work;
• workers in the Far North or territories equated to it and others.

As Article 139 states, additional and basic leave must be paid based on the employee's average earnings, and any additional payments (bonus, allowance, etc.) are taken into account.

The procedure for replacing the employee's rest time with material compensation is regulated by Article 126 of the TC... The same legislative act also defines the categories of citizens who cannot receive compensation in return for refusing to take leave.

It is not always allowed to replace the remaining vacation days with a cash equivalent. In accordance with the law, an employee can take a material payment in just a couple of cases:

• If unused days of additional vacation have accumulated.
• If an employee breaks off an employment relationship with an employer.

It is impossible to replace part of the main vacation with compensation or it is completely impossible, since this would be contrary to Russian laws.

If a labour Inspectorate when checking, it finds these violations - the head of the enterprise is threatened fine from 1 to 5 thousandand on entity will be obliged to pay an amount over 30 thousand rubles, in accordance with the first part of the Code of Administrative Offenses under number 5.

If the employee does not use the vacation days in the current working year, they are transferred to the year following it.

Find out about the duration of additional vacation with irregular working hours in our article.

Dismissal compensation

If an employee decides to leave the organization, he is entitled to provide monetary compensation for all the remaining unchecked vacation days. In accordance with the first part of Article 127 of the Labor Code, the employee has the right to receive payment not only for the remnants of the extended vacation, but also for the unclaimed main one.

Funds are credited on the basis of an application from a resigning employee. See below.

There are also special cases when upon termination of employment with the employer, the employee is entitled to payments for a certain number of vacation days:

• In case of termination of a short-term or seasonal contract, lasting up to 2 months, a material payment is due, as stated in Article 291 of the TC.

Payment is calculated based on the fact that the employee has the right to official rest per month within 2 days... Accordingly, in 2 months 4 days of rest will accumulate, which must be financially compensated by the employer.

• An employee whose position is terminated due to a reduction in staff is entitled to payment for each of the days of unused vacation. In this case, both the main and additional leave.
• If the employment contract on the basis of which the employee worked in the organization ends, the employee may be offered leave with subsequent dismissal.

In case of refusal to take leave, the employee must work in the company for the due date, then he will receive compensation upon dismissal.

• The payment of money is also due to employees working part-time or part-time, such a right is guaranteed to them by article of the Labor Code under number 93.
• Maternity leave is included in the length of service taken into account when calculating payments for unused leave.

Accordingly, the maternity worker has the right to receive, upon dismissal, material compensation for vacation days that were not used before going on vacation, as well as for those calculated while being in it, which is regulated article under number 121 TC.

Who is prohibited from replacing vacation with money?

Certain categories of working citizens who are entitled to extended leave due to special circumstances will not be able to receive material payments instead of days of rest, since this is prohibited by law. The list of persons who will have to use the vacation days in full is indicated in 126 article TC... These include:

1. women during pregnancy;
2. employed workers;
3. persons carrying out labor activity in heavy or harmful work.

How many vacation days can be replaced with money?


It is worth noting that extended leave for harmful or difficult working conditions can be partially compensated, only for the period that will exceed 7 days... That is, the employee will annually rest 28 days of the main vacation, 7 days of the extended vacation, and the rest of the days, if any, can be replaced with cash payments.

Procedure for registration and accrual

To apply for compensation for uncleared vacation, the employee must draw up application addressed to the manager... The document is drawn up in free form, but it should indicate some mandatory data:

• from whom and to whom the document is intended - this information is indicated in the upper right corner of the sheet;
• the word "Application" is written in the middle of the page, and under it the purpose of writing is indicated - replacing vacation days with compensation;
• in the text of the document, an article should be indicated confirming the right to receive payment (126 TC), the period for which compensation can be relied on (as a rule, the last working year is indicated), the exact number of days left unchecked;
• at the bottom of the sheet the applicant's signature, its transcript and the current date are indicated.

After filing, the manager must review it. The management can make both a positive decision and a negative one - this right is reflected in the letter of the Ministry of Labor of Russia under the number 966-1 of April 2002.

If the employee does not agree with the refusal to calculate the payment, he can contact the Labor Inspectorate, which will conduct an inspection at the enterprise.

If the decision is positive, the manager issues order, where the number of days for which the employee will receive payments is necessarily indicated.

This order is sent to the accounting department, where compensation is calculated according to a certain algorithm:

1. the total amount earned by the employee for the working year is calculated, while the payment for sick leave and rest days is not taken into account;
2. the number of days of the settlement period is calculated - if it is fully worked out, then the average number will be 29.6, and if during it the employee was absent from the workplace, these days are excluded from the calculation;
3. the average daily wage is calculated - the calculated amount of earnings is divided by the number of days of the billing period;
4. the resulting value is multiplied by unchecked vacation days;
5. the total number will be the monetary equivalent of the compensation due to the employee for the unused vacation.

Compensation is usually charged within ten days from the moment of consideration of the application. If the Charter of the enterprise has separate conditions regarding the transfer of payments to employees, you may have to wait for compensation until the day the wages are issued.

Other conditions apply to dismissal payments. So, compensation and other settlements with the employee are carried out in his last working day... If the employee was absent from the workplace on that day, then this procedure is postponed to the next working day.

Is the compensation tax deducted?

The Tax Code, Article 210, determines that all income received by the taxpayer is taken into account when calculating the tax base.

Accordingly, the compensation paid on the basis of the employee's application for the main vacation is also subject to personal income tax in the prescribed manner.

The tax is withheld at the time the payment is actually issued in accordance with the text of Article 226 of the Tax Code. Due to the fact that compensation payments for unchecked vacation days are subject to personal income tax, therefore, the company acting as a tax agent is obliged to reflect the withheld tax amount in the reporting documentation - a certificate in form 2-NDFL.

To indicate compensation payments for unused vacation days, a specific code is used - 4800 "Other income".

Withholding payments upon dismissal

The right to leave in the first year from the date of employment arises for an employee who has worked in the organization continuously for half a year.

In subsequent years, the employee goes on vacation in accordance with the previously drawn up and approved schedule... On the day of the employee's dismissal, the employer is obliged to pay him in full cash, including allowances, bonuses and other allowances. In addition, the employer has the right to withhold from the employee's earnings:

• the amounts for non-payment of which he agreed;
• monetary funds for which no consent is required to withhold.

So, if the employment relationship is terminated before the end of the working year, but the employee has taken leave completely, the employer can withhold part of the money paid for the unworked vacation days.

At the same time, the employer is not limited by any limit - in accordance with the 5th paragraph of the second part of Article of the Labor Code under number 137, respectively, he can deduct from the employee's earnings the full amount for vacation days that have not been worked out.

It is prohibited to collect surplus paid vacation pay from dismissed in a number of statutory cases:

• upon dismissal due to staff reduction, upon liquidation of a company and in other cases provided for by Article 81 of the Labor Code;
• when the medical commission recognizes the employee's disability, when he is called up for military service and in other cases specified in article TC under number 83;
• if the employee leaves for the reasons specified in the first part of Article 77 of the Labor Code.

Find out what compensation the employer pays upon dismissal from the video:

The project is in full swing, the deadlines are on fire, the team is working at the limit of its capabilities, success is already close, and then ... the time comes for the next paid vacation for an employee who cannot be replaced within the project ... Is this a familiar situation? Many employers are faced with the fact that vacations come unexpectedly and at the wrong time. And we are ready to do much to postpone the rest the right employees... The first thing that seems obvious is the replacement of vacation with monetary compensation. And everyone seems to be happy. The work continues, the employee can afford a vacation next time, and now he is receiving a good increase in salary. But is it legal? And are there other ways out? We look at the Labor Code.

Can an employee work without vacation

There are also professions and categories of citizens eligible for extended leave:

• Teachers (teachers).
• Medical workers.
• Athletes and coaches.
• Workers of the Far North.

For example, if the employer provides 30 calendar days annually, the employee can be offered compensation for 2 of them.

Or, if in production the employee is entitled to a standard basic leave and an additional 14 days, of which 7 are legally mandatory for this industry, 7 days can be compensated for in money. Please note that if an employee in the current year receives a vacation in excess of the minimum established by law due to the transfer of last year's vacation, the difference cannot be replaced with compensation.

If the compensation is an employee's initiative, the employer has the right to refuse and send the employee on vacation. If the employer initiates the replacement, the employee has the right to disagree.

How to document vacation compensation with money

In order to correctly compensate for part of the vacation, you need to perform the following steps in order.

• If the replacement is initiated by the employer, you need to draw up a free-form memorandum indicating the reasons for the production need to replace part of the vacation. It is compiled by the head of production, the head of the department or the immediate manager of the employee.
• Further, it is necessary to notify the employee in writing against his signature and obtain his consent in writing.
• If an employee asks for compensation, he must draw up a written application in free form (sample).
• Next, you need to draw up an order for the payment of compensation and familiarize the employee with it under the signature (sample).
• The personnel specialist must make a mark on the employee's personal card, and also make clarifications to. In these documents, you must refer to the number of the corresponding order.
• Pay compensation to the employee through the cashier or transfer to a bank card.

With the correct design of the process, the labor inspection should not have any comments in the event of an inspection.

By virtue of different reasons the employee is sometimes preferable to receive vacation pay and continue without vacation, thus increasing his income. Today by general rule replacing leave with monetary compensation is prohibited, but there are two exceptions.

Partial replacement of vacation with money.

Every year, the employee is entitled to paid leave in accordance with Art. 114 and art. 122 of the Labor Code of the Russian Federation. Its duration cannot be less than 28 calendar days. At least one part of this vacation must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation). If you are entitled to additional leave due to the special nature or mode of work or on other grounds provided for in Art. 116 of the Labor Code of the Russian Federation, then additional vacation can be replaced with money.
Ilya Reiser, attorney, head of the People's Advocate project in the SEAD, says: “The law prohibits not granting leave for two consecutive years. The part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation. When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.
It is not allowed to substitute monetary compensation for the basic annual paid leave and annual additional paid leaves for pregnant women and employees under the age of 18, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions. "

Complete replacement of vacation with money.

In accordance with Art. 127 of the Labor Code of the Russian Federation upon dismissal, an employee receives compensation for unused vacation days. Payment of compensation is made on the day of dismissal, which is the last working day. Does not depend on the reason for dismissal. To receive compensation, you must have worked in the company for more than two weeks and have unused vacation days for the current or previous years. The basis for the payment is the order of dismissal and the note-calculation.
Using the norm of Art. 127 of the Labor Code of the Russian Federation, an employee who is not going to quit can also receive a vacation with money. This method is not entirely honest, although it is formally legal. Ilya Reiser reports: “There is such a variant in practice. Before the second annual paid leave, the employee leaves for on their own, receives monetary compensation for unused vacation. After that, the next day he finds a job with the same employer again. There are no violations under the law. However, the employer takes risks in this case. Since when checked by the state labor inspectorate, this fact may come to light. If the company is going to practice this en masse, then it can lead to a fine with a great chance. Therefore, companies do this infrequently. But they do, because the employer benefits from the fact that you work. "

Compensation for delayed vacation pay.

Delayed vacation pay is paid by the employer.
Ilya Reiser: “The leave must be paid no later than three days before the employee leaves on vacation (Article 136 of the Labor Code of the Russian Federation). If the date of payment of vacation pay falls on a weekend or holiday, then payment of vacation pay is made strictly the day before. If the organization does not adhere to these norms when paying vacation pay, then when checked by the labor inspectorate, the organization will be held accountable. "
Based on Art. 236 of the Labor Code of the Russian Federation, the employer must pay the employee monetary compensation for the delay in vacation pay. Compensation is calculated in the form of interest per annum on the amount of vacation pay. The percentage is set at not less than 1/300 of the refinancing rate (from January 1, 2016, the key rate of the Central Bank of the Russian Federation) per day actual payment vacation pay for every day of delay. The first day for which compensation is due is the next day after the due day of payment of vacation pay, and the last day is the day of its actual payment. As of 01.01.2016, the key rate of the Central Bank of the Russian Federation is 11%. To assign compensation, you must submit an application to the employer.
Ekaterina Kitaeva

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

Note. Replacing leave with monetary compensation is an employer's right, not an obligation.

Who cannot replace vacation with monetary compensation

The employee asks you to replace the vacation with cash compensation. And before granting his request, you should make sure that the employee is not among the persons for whom you cannot replace the vacation with money. The list of such persons is provided for by part 3 of article 126 of the Tax Code of the Russian Federation. These include:

Pregnant women;

Employees under the age of 18;

Workers exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant (see also the letter of the Ministry of Labor of Russia dated 03.26.2014 N 13-7 / V-234);

Workers engaged in work with harmful and (or) hazardous working conditions. Here, however, there is an exception.

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

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

How many vacation days can be replaced

There is no legal limit on the number of vacation days that can be replaced with compensation. However, you also do not have the right to replace the entire employee's vacation with monetary compensation.

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

Consequently, your employees can count on a replacement only if you provide them with an extended main or additional leave (Articles 115 and 116 of the Labor Code of the Russian Federation). The table on p. 28 we have cited the categories of workers who are legally entitled to extended main and additional holidays.

The list of employees who are obligatorily granted extended main or additional leave

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

Note. The employer has the right to grant additional vacations to employees at his discretion.

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

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

How to issue a replacement vacation with monetary compensation

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

Receive an application from the employee with a corresponding request;

Issue an order;

Enter a record on the replacement of vacation with compensation in the employee's personal card;

Enter information about the replacement of vacation in the vacation schedule.

Let's consider these steps in more detail.

Step 1. Employee application. The replacement of vacation with monetary compensation is made at the request of the employee, which he reflects in his application. It should be written in the name of the head of the company ( individual entrepreneur). The legislation does not establish the form of such a statement, therefore the employee can draw it up in any form.

Step 2. Order of the employer. If you agree to replace part of the employee's vacation with monetary compensation, you must issue a corresponding order.

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

Step 3. Personal card of the employee. After issuing the order, information on replacing part of the paid leave with monetary compensation must be reflected in the employee's personal card. This information is reflected in section VIII "Vacation".

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

How to calculate compensation

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

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

Average daily earnings in this case are calculated according to the rules for calculating vacation pay. They are established by article and clause 10 of the Regulation on the specifics of the procedure for calculating the average wage (approved by the Government of the Russian Federation of 12.24.2007 N 922).

So, if the employee has worked in full for the billing period, you should divide the actual amount of the employee's wages for this billing period by 12 and by 29.3 (the average monthly number of calendar days).

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

KDMP \u003d KMP x 29.3,

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

KMP - the number of months fully worked;

29.3 is the average monthly number of calendar days.

KDMN \u003d 29.3: KKDMN x CODE,

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

ККДМН - the number of calendar days of the month that has not been fully worked out;

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

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

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

KKD \u003d KDMP + KDMN,

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

Finally, determine your average daily earnings:

SZ \u003d SV: KKD,

where SZ is the average daily earnings;

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

Example 2. An employee of LLC "AvtoLombard" OV Simonova, according to the employment contract, is entitled to an additional vacation in the amount of 4 calendar days. She applied to the employer to replace this part of the leave with monetary compensation. The settlement period is from August 1, 2013 to July 31, 2014. From 1 to 28 April 2014 O.V. Simonova was in next vacation 28 calendar days. And in January 2014, the employee was ill for 10 days. The remaining months of the billing period have been fully worked out.

Over the past 12 calendar months, payments to the employee amounted to 420,500 rubles, of which vacation pay - 29,800 rubles. and payments for a certificate of incapacity for work - 9,200 rubles. We will calculate the amount of compensation that is due to the employee.

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

The number of calendar days taken into account when calculating the average earnings is 255.8 days. (234 days + 21.8 days). The benefits taken into account do not include the average earnings retained during vacation and the temporary disability benefit. Therefore, vacation pay should be calculated on the basis of 381,500 rubles. (420,500 rubles - 29,800 rubles - 9,200 rubles). The average daily earnings for calculating compensation will be 1,491.4 rubles. (381,500 rubles: 255.8 days). The amount of compensation to be paid O.V. Simonova, will amount to 5965.6 rubles. (1264.04 rubles x 4 days).

Note that the labor law does not define the time frame in which you must pay the employee compensation in exchange for vacation. But we recommend that you do this on the next day set for the payment of wages.

Note. Frequently asked Questions

Is it possible to replace with monetary compensation study leave?

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

What will happen to us if we replace the employee's vacation with money, which does not exceed 28 calendar days?

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

What taxes and contributions should be charged on the compensation paid

As a general rule, the compensation paid in exchange for vacation is the employee's income. In the list of payments not subject to personal income tax, it is not named (Article 217 of the Tax Code of the Russian Federation). Accordingly, you need to calculate, withhold and transfer personal income tax to the budget from its amount. About this - the letter of the Federal Tax Service of Russia dated 03.13.2006 N 04-1-03 / 133. Personal income tax should be paid to the budget on the day the money is received at the bank for payment of compensation or on the day it is transferred to the employee's bank account.

Also, the amount of compensation paid to the employee is subject to contributions to the Pension Fund, FSS and FFOMS. This is directly provided for by subparagraph "and" of paragraph 2 of part 1 of article 9 of the Federal Law of 24.07.2009 N 212-FZ and paragraph 13 of subparagraph 2 of paragraph 1 of Article 20.2 of the Federal Law of 24.07.98 N 125-FZ. This conclusion is also confirmed by the regulatory authorities (letter from the Federal Security Service of the Russian Federation of 11/17/2011 N 14-03-11 / 08-13985).