Parting

Lunch break. Lunch break: the subtleties of legislation

Almost all enterprises lunch break is an integral part of the working day. But few people think about how long it can last according to the law. Especially with a non-standard labor process. All the subtleties are considered in our consultation.

obligatory

Any person has such a physiological need as food intake. And preferably - several times during the day. Is a lunch break required?? By law, yes, it is required.

The employer does not have the right to refuse an employee a break for food and rest. This is enshrined at the legislative level by the Labor Code of the Russian Federation.

Is it included in working hours and pay

Article 100 of the Labor Code of the Russian Federation states that working time, regardless of its duration, involves breaks. This applies to both the working week in general and the working day in particular.

Do not pay

The lunch break is the time for the employee to rest in accordance with Art. 107 of the Labor Code. In addition, according to Art. 108 lunch time cannot enter the workspace. And, therefore, it cannot be paid, since the employee uses it at his own discretion and most often for his own needs.

Several important nuances follow from this rule. For example:

management cannot dismiss an employee who, during his legal break, was not at the workplace in a state of alcohol or drug intoxication;
management cannot dismiss an employee for not being present at the workplace during lunch break. That is, this case does not fall under absenteeism.

Pay

Of course, almost every rule has an exception. So, lunch time may be included in the work, if the specifics of the labor process does not allow to leave and have a bite to eat.

In this case, the organization must provide its team with everything necessary so that employees can have lunch right at the workplace during office hours. Moreover: in this case, the break will be paid.

How long does it take

On practice lunch break may vary in duration. It depends on the:

areas of activity of the organization;
the specifics of the employee.

The Labor Code of the Russian Federation sets only general guidelines for the duration of the lunch break. And most often it is the employer who decides how long it will be break for lunch. How much according to the Labor Code of the Russian Federation will be allotted for a break due to the specifics of the work, unfortunately, it is not regulated.

This issue is usually resolved:

in words, through negotiations with the employee (at best, an additional agreement is concluded to the employment contract, where the time frame is prescribed lunch break);
the exact period of time for eating is fixed in the internal rules.

Of course, some framework in question, how long is the lunch break are still installed. According to the Labor Code of the Russian Federation, a lunch break cannot be:

shorter than 30 minutes;
longer than 2 hours.

And here there are exceptions. So, if the specifics of the work require it, employees can be given as many as 2 lunch breaks. Most often this happens if the employee is forced to work more than 8 hours a day.

EXAMPLE

The tram driver works in shifts. However, he gets much more than 8 hours a day. The transport company is obliged to provide him with 2 breaks. For example, break one standard one-hour break into two 30-minute breaks.

There are times when an individual employee needs a longer or vice versa - a short break. This is decided by agreement of the parties and fixed in the labor contract and / or additional agreement to it. Most often this happens with future or completed maternity leave.

Features for a non-standard working day

Not every job involves an 8-hour work day. Often an employee works only 4 hours a day, and sometimes more than 12 hours. Let's take a look at what they might be. lunch break. Dinner according to Art. 93 of the Labor Code of the Russian Federation with a shortened working day - should also be present in the employee's schedule.

Keep in mind: an employee who works less than the usual 8 hours is not limited in any way in his rights. Including rest and lunch. Therefore, he, like any other employee, is given lunch. Its duration cannot be less than 30 minutes.

It doesn't matter how long the working day is. According to the Labor Code, every employee has the right to lunch for at least 30 minutes.

Otherwise, the law regulates lunch at 12 hour day. Very often you can meet a 10 or even 12 hour working day with a shift schedule.

Unfortunately, Russian legislation does not provide for additional time for an employee to dine 2 times instead of once. However, all issues can be resolved on the spot with the employer. So, sometimes they install:

as many as 2 lunch breaks;
give one large one in the amount of 2 hours.

Remember: anyway lunch break duration cannot be less than 30 minutes.

Often in production, where the working day lasts 10 hours or more, management gives the employee the opportunity to:

go home and have a good rest (usually 1.5 - 2 hours are allocated for this);
or stay at the workplace and have lunch for half an hour, and the rest of the time is compensated by leaving home earlier.

New edition Art. 108 Labor Code of the Russian Federation

During the working day (shift), the employee must be given a break for rest and meals of no more than two hours and no less than 30 minutes, which is not included in working time. The internal labor regulations or the employment contract may provide that the specified break may not be granted to the employee if the duration of daily work (shift) established for him does not exceed four hours.

The time of the break and its specific duration are established by the internal labor regulations or by agreement between the employee and the employer.

At jobs where, due to the conditions of production (work), it is impossible to provide a break for rest and food, the employer is obliged to provide the employee with the opportunity to rest and eat during working hours. The list of such works, as well as places for rest and eating, are established by the internal labor regulations.

Commentary on Article 108 of the Labor Code of the Russian Federation

During the working day (shift), the employee must be given a break for rest and meals of no more than 2 hours and no less than 30 minutes, which are not included in working time.

The time of the break and its specific duration are established by the internal labor regulations of the organization or by agreement between the employee and the employer.

Another commentary on Art. 108 of the Labor Code of the Russian Federation

1. In accordance with Art. 108 of the Labor Code of the Russian Federation, a break for rest and meals is provided during the working day (shift). It follows that a break should be granted regardless of the length of the shift. The practice established in previous years adhered to the rule that if the length of the working day or shift did not exceed six hours, work could be done without interruption. This practice must be seen as contrary to Art. 108 of the Labor Code of the Russian Federation. At the same time, if the work is performed during half the working day or in a shorter period (with part-time work), not providing a break does not contradict the requirements of Art. 108 of the Labor Code of the Russian Federation.

2. Since a break for rest and meals, not included in working hours, cannot be less than 30 minutes, breaks of less than half an hour must be included in working hours.

3. A break for rest and meals can be used by the employee at his own discretion (see article 106 of the Labor Code of the Russian Federation and commentary thereto). The employee has the right to leave during the break both from the place of work and from the territory of the organization.

The employer is obliged to provide employees with time off. This obligation is legally enshrined in the Labor Code of the Russian Federation. This time also includes a break for food and rest. Separately, there is a break for feeding the child. It is provided to working women with children under 1.5 years old.

Break time for rest and meals

The length of time for food and rest is determined either independently by the employer in the rules of the VTR, or by agreement with the employee.

A break during the working day with a duration different from that provided for by the Labor Code of the Russian Federation

Working on the terms of external part-time work does not prevent the provision of breaks for feeding the child. The father who is raising a child without a mother is also entitled to take advantage of these breaks (clause 15 of the Decree of the Plenum of the Armed Forces of the Russian Federation of January 28, 2014 N 1).

To provide these breaks, the employer will need to:

request a written application from the employee with the child's birth certificate attached;
draw up and sign an additional agreement to the contract regarding the procedure for providing appropriate breaks;
sign the relevant order and familiarize the employee with it against signature.

Daily work - according to the Labor Code, rest time under this regime is not specifically regulated, employers are guided by the general rules of section V of the Labor Code of the Russian Federation. How many and what should be breaks during daily work, read in this article.

The concept of daily work

Daily work is understood as the performance by the employee of his labor duties within 24 hours. With regard to such a regime, there are no prohibitions in the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), but when establishing it, the following must be taken into account:

per week, the employee must work no more than 40 hours - part 2 of Art. 91 of the Labor Code of the Russian Federation (for information on who has a shorter working week, read our article “Reduced working hours (nuances)”);
during the week, the employee must have a continuous rest of at least 42 hours (Article 110 of the Labor Code of the Russian Federation).
not all categories of workers can be involved in shift work lasting a day due to the presence of restrictions on the length of the working day / week for certain categories of workers (minors, disabled people, etc. - Articles 92, 94 of the Labor Code of the Russian Federation) - see block - diagram below;
not all categories of workers can be involved in work according to such a schedule due to the ban on involving them in work at night - Art. 96 of the Labor Code of the Russian Federation (more details in our article “Payment for night work under the Labor Code (nuances)”).

How to schedule work and rest for daily shifts?

The most common schedules in practice are a day after 2 and a day after 3. With such schedules, there is a violation of the requirement for a 40-hour week, so the employer introduces the summarized time accounting provided for in Art. 104 of the Labor Code of the Russian Federation.

Risks! According to Art. 104 of the Labor Code of the Russian Federation, if it is not possible to comply with the daily and weekly working time limits, the employer considers the hours worked for the accounting period and controls that they do not exceed the established norm for the accounting period.

The procedure for introducing summarized accounting of working time is regulated by the internal labor regulations. Accordingly, these rules also determine the accounting period - a month, quarter, six months or a year. It is not allowed by law to take into account hours worked for more than a year (for workers in the industry with harmful conditions, the limit is 3 months - part 1 of article 104 of the Labor Code of the Russian Federation).

Note! Thanks to the accounting of working hours, unworked hours can be covered by overworked ones.

The normal number of working hours for the accounting period is determined on the basis of the weekly working hours established for this category of employees.

Consider, using a specific example, the rules for scheduling daily work, for example, for April 2019:

scheme - in 3 days;
accounting period - month;
the number of working days according to the calendar of the five-day working week - 22;
the number of hours per month that accounted for the reduction in working hours in April 2019 is 1 hour.

The calculation of the norm of hours of working time for a month is carried out in accordance with the Calculation Procedure ..., approved. by order of the Ministry of Health and Social Development of August 13, 2009 No. 588n:

Norm hours \u003d (40 hours x 5 / 22) - 1 hour \u003d 175 hours.

The shift schedule for the month is presented below (C - shift, B - day off).

Working hours and rest time with a daily schedule

The start and end times of work are indicated in the internal regulations and, if necessary, in the employment contract.

According to the Labor Code of the Russian Federation, with a daily work schedule, the rest time is no different from the rest time under other modes of operation. It is established subject to the provisions of Sec. 18 of the Labor Code of the Russian Federation:

during the working day (shift), the employee must be given a break for rest and meals lasting no more than two hours and at least 30 minutes, which is not included in working hours (part 1 of article 108 of the Labor Code of the Russian Federation). If an employee is on a shift lasting 24 hours, then during this time, then, for example, the internal labor regulations may provide for 2 breaks of 1 hour or 4 of 30 minutes. etc.;
if the employer cannot provide the employee with the opportunity to leave the workplace and use the rest time at his discretion (which most often happens with daily work), then the time for eating and rest will be included in the working time.

Note! In accordance with the above, the time sheet may indicate a shift lasting 22 hours (for example, if the employee is given 2 hours for a break during the shift and the employee can leave the workplace) or 24 hours (if the employee could not be absent from workplace).

Weekends are 2 or 3 days (depending on the mode) after 24 hours worked.

Important! Generally accepted days off (Saturday, Sunday) or holidays, if a shift falls on them, they are not days off, because the employee works according to his own schedule and the days off for him are determined precisely in accordance with such a shift schedule.

Is the daily schedule a shift work

The daily schedule can be set not only for shift work, but also in the flexible schedule mode provided for in Art. 102 of the Labor Code of the Russian Federation. How they differ - see the table below.

Criteria	Shift work	Flexible working hours
How the schedule is made	Employer with union approval, etc.	By agreement of the parties
Is it possible to put an employee in 2 shifts in a row		Yes, with the consent of the employee
What is overtime (overtime)	Of the hours of work after the shift under Art. 99 of the Labor Code of the Russian Federation + in excess of the norm established for the accounting period	Hours in excess of the norm established for the accounting period
Whether the summarized accounting of working hours is introduced	Necessarily	Necessarily
Is the shift that falls at night reduced by an hour?	shrinking	Not shrinking
How is a shift that falls on a public holiday paid?		At least double
Who can not be put on a day	Pregnant women, minors, disabled people with children under 3 years old, etc.

Note! Regardless of the type of regime in force at the enterprise, the employee retains his labor rights and guarantees. For example, in case of non-attendance at work for good reasons (sick leave, etc.), the employee is not required to work off the missed shift. Of course, all other guarantees provided for by the Labor Code of the Russian Federation are also preserved (the right to annual paid leave, laid down in the reduction of compensation and payments, etc.)

Pay for daily work

Remuneration for flexible and shift work has the following features:

actual hours worked are paid: salary or rate;
night work is paid at an increased rate in accordance with Art. 154 of the Labor Code of the Russian Federation (in 2019, the increase occurs at least in the amount of 20% of the salary / hourly rate for each hour of night time - see Decree of the Government of the Russian Federation of 07.22.2008 No. 554);
the holiday on which the shift fell is paid at a double rate (except when the employee is given a day of rest for working on a holiday, in which case the payment is made at a single rate). If only part of the shift fell on a holiday, then only the hours actually worked on that day are paid at a double rate (part 3 of article 153 of the Labor Code of the Russian Federation) - you can read about the intricacies of the calculation in the article “How holidays are paid with a shift schedule ? ;
overtime for the first 2 hours is paid at 1.5 times, the next - at a double rate (Article 152 of the Labor Code of the Russian Federation).

Note! All rates / surcharges / increases can be changed by local acts in a direction greater than those established by the Labor Code of the Russian Federation.

Shift work has such a specificity that when calculating the amount of hours actually worked, the employee accumulates overtime hours. In this regard, the employer should carefully consider the following points:

he is responsible for accurately accounting for the overtime of each employee (part 7 of article 99 of the Labor Code of the Russian Federation);
overtime work should not exceed 120 hours per year (part 6 of article 99 of the Labor Code of the Russian Federation);
work on weekends and holidays does not apply to overtime (part 3 of article 152 of the Labor Code of the Russian Federation).

To determine the exact amount of payment for overtime work, it is recommended that calculations be made under this item at the end of the accounting period.

So, rest time with a daily work schedule is lunch breaks, following several days after work (established by the internal labor regulations), vacation. Saturday, Sunday and public holidays falling on the shift are not days off and overtime. At the same time, the worked days off according to the schedule and holidays are paid at a double rate (or at a single rate, provided that the employee is additionally provided with a rest day).

Man is not a machine; he is unable to work without respite. He needs to eat, and drink tea, and stretch.

How often can you be distracted from your duties without risking a severe reprimand? Who is entitled to additional breaks on a daily basis?

Rest at work according to the Labor Code of the Russian Federation

In Russia, regulated breaks are defined by fairly transparent rules. All periods of rest provided by law are logically divided into two types - unpaid and paid.

Unpaid breaks

Paid breaks

Sometimes working conditions do not allow employees to go to lunch at standard times. In such circumstances, the following are approved included in working hours and paid breaks provided for by the Labor Code of the Russian Federation:

Employees working in the cold season in the open air or in closed unheated premises, as well as loaders engaged in loading and unloading operations, and other employees, if necessary, are provided with special breaks for heating and rest, which are included in working hours.

workers mothers of young children(under the age of one and a half years) but have the right to leave several times a day to feed the child. Breaks must be provided to them at least every 3 hours, lasting at least 30 minutes each. If there are two or more babies, the duration of the break must be at least one hour.

Technological pauses are paid. Their duration directly depends on the nature of the work. For example, with constant interaction with video display terminals, a specialist should be distracted from the screen for 10 minutes every 45-60 minutes of work. Free ten minutes are needed to restore concentration.

Tea breaks, adopted in most offices, are not fixed in labor legislation. As a rule, workers drive teas as long as their conscience allows them.