Considering requirements set forth in Decrees of the RF President N 206 dd. March 25, 2020 and N 239 dd. April 02, 2020, whereunder the “non-working days” ordered by the Decrees are provided with pay of salary, most of the questions asked in this regard are about what is to be included therein.
We remind that “non-working days” are a new kind of days off which are not provided for by the RF Labor Code. The Labor Ministry specified in its Recommendations to employers that “non-working days” are not days off or non-working public holidays, therefor payment is to be made in a usual – not in an increased amount. The Ministry’s position on this matter was announced on March 26, 2020 and so far remains unchanged.
Below we will discuss some issues connected with payment of salary to employees who are released from work in accordance with President’s Decrees and acts of regional authorities.
Within this category also fall employees of organizations to which President’s Decrees do not apply but who actually do not have opportunity to work at their work places and cannot perform their job function distantly, because with respect to this category of workers the question arises as to the extent to which the employer has the right to require that they should distantly perform work which is not provided for by the employment contract or temporarily transfer them to another job as provided for by Art. 72.2 of the RF LC. Considering recommendations of the Labor Ministry of March 25, 2020, we believe that issues connected with work of such category of employees during “non-working days” should be resolved through negotiations and by mutual consent of the parties to the labor contract.
What employers must include in salary payment for “non-working days”?
We believe that employers will not be able to limit payment to just fixed compensation but are not obligated to keep paying employees average earnings either.
The Labor Ministry specified in its answers to questions that “in pursuance of implementation of the Decrees of the President of the Russian Federation on non-working days employees are to be paid namely the salary provided for in their employment contracts” and the “amount payable is to be in line with the one which the employee would have received if he/she had worked during all those days”.
In our opinion, an employee must include in the salary payable for the “non-working days” all its “fixed” pecuniary liabilities to employees as provided for by law, employment contract and its local normative act (LNA) such as: fixed compensation, personal bonus to compensation amount, regional salary coefficient markup, seniority pay, additional pay for professions/positions overlapping and other similar payments. If bonuses are determined in the individual employment contract employer’s LNA as not guaranteed payments, they are not taken into consideration and are not included as well as increased pay for night work.
Since the job function will not be actually performed during “non-working days”, employer is not required to pay compensations or reimbursements of business travel related expenses connected with the use of private property, including cars, for business purposes, communication expenses, food allowance, or similar payments.
The Labor Ministry determined that employees who do piece work shall be paid as follows: compensation for “non-working days” is to be paid as provided for by employer’s local normative act. However, it is not quite clear whether this may be a new employer’s LNA adopted for the purpose of payment for piece work during “non-working days” or whether it is possible to apply the LNA adopted by the employer in accordance with Art. 112 of the RF LC, which determines extra compensation to piece workers for non-working public holidays. Furthermore, the Labor Ministry specified in its answers concerning piece-workers that the amount of pay for “non-working days” should correspond to the amount which the worker should have received if he/she had met the worktime standards applicable to piece-work. I.e., the ministry has not developed a definite position on this issue.
Another specific issue concerns employees compensated for their work at a set hourly rate. Usually such category of workers are engaged in shift schedule work and in such case it is recommended to effect payment in accordance with the shift schedules approved for April. With respect to this category of employees the Labor Ministry stated in its answers that the amount of pay should be in line with the amount which the employee would have received if he/she had worked during standard working time.
Salary payment days set at the employer’s organization must be observed
Salary for “non-working days” is to be paid in accordance with normal procedure on days set in the employment contract and/or employer’s LNA. Labor Ministry’s position with this matter has been expressed quite clearly.