Although it’s small, it’s still money: is there compensation for vacation if you’ve worked for 1 month or less?

The severance of an employment relationship can occur for various reasons. There are situations when an employee quits without even working for a month. There are a number of reasons for this. The initiator can be an employee or an employer. It is important for the head of the company to understand whether compensation is due for unused vacation if a month or less has been worked in the event of a break in the employment relationship.

The procedure for calculating compensation for unused vacation

The formula for determining vacation compensation is as follows:

Compensation for unspent vacation = average daily earnings * number of days of unspent vacation

The two parameters of this formula have their own calculation rules; we present them below.

The procedure for determining average daily earnings (Article 139 of the Labor Code of the Russian Federation):

To calculate average daily earnings, you need to take the sum of all payments to an employee over the last year, then divide it by 12 months and then divide it again by 29.3. The last number is a constant indicating the average number of days in a month.

The list of payments used in calculating average earnings includes:

• wages according to different remuneration systems;
• bonuses;
• salary in non-monetary form;
• other bonuses and remunerations provided for by the internal regulations of the enterprise.

However, other payments not related to wages are not taken into account. For example, compensation for food or travel, purchasing vacation vouchers, etc.

Let’s assume that an employee has not worked fully for some months. For example, he was on sick leave and could not perform his work duties due to a technical failure at the enterprise through no fault of his own. Then the formula for average daily earnings will be adjusted:

To determine the number of days in partial months in the denominator, you need to adjust the average number of days in a month (29.3):

The procedure for calculating the number of days worked for the purpose of determining the duration of vacation (Article 121 of the Labor Code of the Russian Federation):

The second step in calculating compensation is determining the number of days entitlement to vacation. The length of service for these purposes includes:

• days when the employee performed his job duties;
• holidays, weekends, annual paid leave;
• forced absences from work through no fault of the employee. For example, in case of illegal dismissal;
• vacation time at the request of the employee at his own expense (no more than 14 days).

Please note that the working period does not include the following days:

• when an employee was absent without a valid reason;
• leave to care for a minor child;
• vacation at your own expense, when its duration is more than 14 days;
• when the employee was removed from work by management for the reasons listed in Art. 76 Labor Code of the Russian Federation. For example, appearing in the office while intoxicated, refusing a mandatory medical examination or training required for a given position, etc.

After this, the number of vacation days that the employee is entitled to for the time worked is calculated. The countdown begins from the date of hire. The right to leave arises 6 months after employment in this organization. The number of vacation days that an employee can use is determined by the formula:

A month in which 15 days or more can be counted as length of service for the purposes of calculating vacation is considered to be fully worked.

Next, from the “earned” vacation, you must subtract the number of days that the employee has already used. As a result, we obtain the number of days required to calculate compensation.

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Legislative framework of the Labor Code of the Russian Federation

Articles No. 77, 78, 80 and 81 of the Labor Code are devoted to the conditions and grounds for termination of employment relations. The word “working out” itself is not mentioned in the regulations. This term is formulated as “dismissal notice”. You will not be able to leave the organization without prior notice to management. This is illegal and may result in a “bad” entry appearing in the work book. The employee must communicate his plans to quit in writing. The employer is obliged to accept the application, consider it and make a decision.

According to the law, a two-week period is defined for working out. This time is given to find a new employee and transfer cases. If a subordinate changes his mind about leaving and a replacement is not found, he has the right to remain in the organization.

There is no information in the Labor Code about what exactly an employee should do during the working period, but the subordinate must be present at the workplace. If the parties agree, the period may be reduced, but the extension of compulsory service is prohibited by law.

You can resign with reduced pay in three days. This right is granted to employees hired on a probationary period (Article 71 of the Labor Code), seasonal employees (Article 296 of the Labor Code) and specialists with whom a temporary employment contract was concluded for a limited period (no more than 2 months) (Article 292 of the Labor Code ). Such privileges do not apply to full-time employees working on a permanent basis.

When is it necessary to pay compensation for unused vacation?

All amounts that the employee should receive based on the results of the calculation, including compensation for unused vacation, are transferred on the last working day in this organization. Suppose the person did not work that day. Then compensation must be paid no later than the day following the date on which the employee submitted a request for payment.

For financial or other reasons, a company may delay the payment of compensation to a terminated (or resigned) employee. Failure to pay or pay funds on time is a violation of the law. In this case, for each day of delay, the former employee is provided with an additional payment. The percentage of this payment cannot be less than 1/150 of the key rate of the Central Bank of the Russian Federation. The amount is determined by multiplying this percentage by the unpaid earnings. In addition, the employee may seek compensation for moral damage through the court.

Failure to pay or incomplete payment to the employee of all amounts due entails administrative liability under Parts 6 and 7 of Art. 5.27 Code of Administrative Offences. If an administrative offense is established, the following sanctions will be applied to the employer:

There are situations where failure to pay or underpayment of compensation to an employee is considered a crime. In this case, the provisions of the Criminal Code of the Russian Federation will be applied to the perpetrators. Criminal liability may arise:

• in case of partial non-repayment - after three months of delay in transferring compensation;
• in case of non-payment - after two months of delay.

At the same time, the employer must have a selfish motive for delaying compensation. For example, an organization has funds in its current account to pay a settlement, but the manager used them for his own personal interests. Authorized persons may face a fine, removal from office, forced labor, or even, in especially severe cases, imprisonment (Article 145.1 of the Criminal Code of the Russian Federation).

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How is the payout amount calculated?

In this situation, exactly the same method of calculating the number of complete months is used.

1. Full compensation (for 28 days) is due if you have 11 months of experience in one organization. and 15 days
2. If the employee was a member of the workforce for less than the specified time, then 11 months are taken into account. But in such a situation, a person is still legally entitled to vacation pay for a whole year, i.e., 28 days.

Consequently, if the work experience before dismissal is within 11–12 months, full compensation is issued .

Vacation compensation in reporting forms

The question arises whether the compensation paid to the employee should be reflected in the 2-NDFL certificate and the quarterly 6-NDFL form. The documents must reflect all payments to the employee that were subject to personal income tax. In accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, compensation for unused vacation is not included in the list of income exempt from taxation. Art. 422 of the Tax Code of the Russian Federation also does not provide for exemption from insurance premiums. Therefore, as in the case of salaries, the company will be a tax agent for personal income tax and will have to pay all necessary contributions to the budget.

The tax must be transferred to the budget no later than the day following dismissal and payment of compensation. Contributions are transferred no later than the 15th day of the month following the month in which the employee received the payment.

Compensation for vacation in calculation of 6-NDFL:

In fact, compensation will be considered received on the day of dismissal. Therefore, line 100 of 6-NDFL will indicate the employee’s last working day. All payments upon dismissal and personal income tax on them are indicated in one amount. The payment is indicated on the form for the period in which the employee left. An exception would be the situation when an employee leaves on the last day of the quarter. In this case, the obligation to remit the tax will appear only in the next reporting period (clause 13 of the Federal Tax Service Letter dated November 1, 2021 No. GD-4-11/ [email protected] ). The transaction will be considered unfinished in the current reporting period. Therefore, termination payments should be included in the next quarter's report.

Compensation for vacation in certificate 2-NDFL:

Compensation for unused vacation days upon dismissal is indicated in 2-NDFL as a separate line. The correct code is 4800 (“Other income”).

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What is an employee entitled to when leaving work with less than a year of service?

If a person has less than 11 months of experience at an enterprise, then payments for vacation time not taken must be accrued in proportion to the time worked in this organization.

However, it must be taken into account that for these purposes, a full month is taken to be one in which the employee worked half or more calendar days .

Therefore, if you worked 10 months before dismissal. and 15 days or more, but less than 11 months, they will give you money for a full vacation.

In the case where the length of service before dismissal was 10 months. and, for example, 9 days, then only 10 months are taken into account. Therefore, the number of days is calculated as follows:

28 days / 12 months * 10 months = 23.3 days

This method of calculation is supported by letter of the Ministry of Labor of the Russian Federation dated October 28, 2016 No. 14-1/B-1074.

The influence of the size of the coefficient on vacation pay

The coefficient 29.3 is used when calculating vacation pay and shows the average number of days excluding federal holidays. It is on this and the number of months worked in full that the employee’s earnings are divided.

Taking into account the fact that the coefficient has decreased, the calculation has become more profitable for employees: they have the right to count on larger vacation pay.

Thus, the change in the coefficient was fully justified by the changed realities.

Types of working holidays

Vacation is the legal release of an employee from performing his job duties for a certain period of time while retaining his position and salary.
The right to such rest is enshrined in the Constitution of the Russian Federation, the Labor Code of the Russian Federation and other legislative acts. An application for dismissal while on leave without work can be submitted if the employee is on one of the following types of working holidays:

• annual leave provided to everyone who works under a contract;
• maternity leave;
• social (educational, without salary, for pregnancy and childbirth).

A resignation letter written before the vacation or during the period while the employee is on vacation will be grounds for replacing work with vacation days.

If the resignation letter is written on March 3, and vacation is provided from 4 to 17, then you do not need to work out anything. On March 18, such an employee will be considered dismissed. Time is calculated according to the same principle if the application is written during vacation: the remainder of the rest days will be counted as work, starting from the day following the writing of the application. Other days will need to be worked in the general order.

Wage

If there is a dispute regarding the final amount of the salary settlement, the employer undertakes to pay the employee the amount that is not in dispute.

In case of violations regarding the timing or amount of payment of wages, the employee has the authority to appeal to the labor inspectorate or to court.

When paying wages, the employer must take into account bonuses, allowances, and additional payments; all these incentive payments must be taken into account when determining the final salary amount.