The relationship of the employee and the employer is a rather complicated process. That is why it is regulated by legal acts, as well as, of course, the country's Labor Code. A lot of controversy and questions arise when the employee is dismissed. Especially if the employer is going to make any deductions. These include retention for unworked vacation days upon dismissal. Here there are some nuances that you need to know both the representative of the employer and the employee. The first one needs to protect his interests, but not violate the current legislation, and the second just needs to make sure that his rights have not been violated. Both parties should not lose money. Therefore, the article presents the most frequently asked questions and reveals typical situations.
Types of vacations. Administrative and student
First of all, it is necessary to decide what holidays the employee is entitled to. There are several of them, depending on what kind of work the employee is engaged in or for the purpose of use.
The latter include administrative and student leave. The first is the days for which the employee does not receive payment. But at the same time he is not given absenteeism in the report card, since the absence was agreed with the employer, and this fact was confirmed by order. Administrative leave is usually arranged in unforeseen situations, for example, if you need to go to your relatives or if some unhappiness has occurred. Since administrative leave is not paid, no one can keep it.
Student leave is granted to an employee receiving a first higher or secondary education in parallel with work. According to the legislation, the employer is obliged to provide days of student leave upon presentation of a letter of inquiry issued by the educational institution. At the same time, each course has its own number of days for the session and final certification, which can be paid. That is, in the first and second courses it is forty calendar days, and in the third and subsequent courses - fifty each. It is worth noting that this refers to the calendar days of vacation. Extending student leave on holidays is not practiced.
If the employee receives a second higher education, then paid student leave is not appropriate for him. It is not possible to get such a vacation in advance, since payment is made after a month, that is, vacation leaves are not issued before the deadline, as happens with the next vacation. Accordingly, deductions for unworked vacation days when dismissing tangential student leave cannot be made.
Another vacation. What the law says
Each employee has the right to get paid leave, it is also called annual. The Labor Code clarifies which categories of workers can count on holidays. These include:
- Employees for whom this job is considered the main.
- Combinators.
- Working at home or remotely.
- Part-time employees.
This list includes almost everyone who takes part in labor activities at the enterprise. Thus, each employee has the right to leave on time and for a certain number of days.
What is the duration of the annual main paid leave at the enterprise? Standard leave for most organizations is twenty-eight calendar days. More specifically, article 115 of the Labor Code emphasizes that an employee cannot receive less than twenty-eight calendar days of annual leave per year. However, there are other categories of people who are entitled to a longer period of rest, due to the complexity of the work, as well as workers receiving additional leave, for example due to harm, or persons with disabilities of the second group.
Extra holidays. Prepaid expense
Additional leave may be granted to a number of employees. These include those who work in the Far North, are disabled in the second group, or work in harmful working conditions.
In all these cases, the legislation provides for additional days of rest, which are paid by the employer. An interesting fact is that each of them, with the exception of additional harmful leave, can be taken in advance by the employee, that is, for hours that have not yet been worked out. Thus, these types of leave are also subject to withholding.
But in the case of leave, which is granted to those who are involved in enterprises with harmful working conditions, additional days are provided strictly for the hours worked. Therefore, such a concept as “take a vacation in advance” for this type does not exist. That is, there is no way to keep them.
For what period can I give a vacation?
Why does the situation arise that it is necessary to withhold for unworked days of leave upon dismissal? It would seem that everyone has the right to a certain number of days of rest per year, and there should not be any oversupply. In practice, everything looks different.
The labor code, which the employer refers to, claims that the employee can get the first leave after having worked at the enterprise for at least six months. At the same time, annual leave for fourteen calendar days can be issued, that is, exactly half of what is set.
All other years, the employee can take the prescribed days of rest in any month, coordinating this with the work schedule and vacation schedule. It would seem that an employee who came in November and worked for several years should take leave after the worked year, that is, not earlier than November of the next year. However, in practice, he can take it at any time, for example, in the summer. If the vacation was issued in June, then the employee “did not work” for a few more months: July, August, September and October. That is, for these months he has not yet been entitled to leave, this is what they call the "vacation in advance".
Calculation of vacation days. Work frames
In most companies, an employee can take leave of absence upon personal request.
How are days calculated? If an employee has the right to twenty-eight days of vacation for a calendar year, this means that every month he is entitled to 2.33 days. So, if an employee who got a job in November wants to take a vacation in June, he can arrange it for 16 or 17 days. In this case, if the employee decides to dismiss, he will not owe anything to the company. Accordingly, no deduction for unworked vacation days will be made. At the same time, both the full month and the one that was worked out by the employee by more than half are taken for calculation.
How many days can I get a vacation?
Regarding the rights of the employee, it is worth recalling article 122 of the Labor Code. It says that a citizen has the right to take his leave at any time by notifying the employer two weeks in advance. It is also prescribed in advance in the vacation schedule for next year. So the employee has the right to receive full leave at any convenient time.
As for the division of the days, then the Labor Code gives a hint. It says that you can take leave in parts.However, it is worth noting that one part must be at least 14 calendar days. But the size of the subsequent ones is not regulated. However, not every employer is ready to take holidays for two or three days. Therefore, the employee should agree with the employer or the personnel department.
Sample vacation scheme
In most organizations, making a vacation is simple. If an employee follows the schedule that was drawn up in the previous year, then no personal statements are required. For two weeks, the personnel department draw up an order in which the head of the enterprise or structural unit signs, as well as the employee himself. You should be careful, because it is in the order that the dates of vacation are written, as well as the number of days of rest. By signing the document, the employee gives his consent to these dates and a specific number of days.
If the vacation needs to be postponed or days taken for the past time, then you should write a statement that the employer is considering. After the signature of the executives, an order is also issued. Based on the order, a calculation note is drawn up, which is sent to the accounting department.
If an employee decided to quit
However, controversial issues begin to arise if an employee who has issued leave for an unworked period decided to quit. It should be noted right away that the employer cannot keep him at the enterprise. Employees of the personnel department should also not refuse to give the work book, as this will be illegal.
There are two methods for a peaceful settlement. In the first case, the employer simply withholds the amount that was written out for the unworked time. This situation is possible when the dismissal occurs at the end of the month in which all days were worked. In this case, there will be enough funds to pay off the entire amount. The second option also consists in paying off the debt, but already in cash at the cash desk of the enterprise.
It is worth noting that some mistakenly believe that the employer cannot withhold more than twenty percent of the accrued payment. In this case, reference is made to article 138 of the Labor Code. But it should be understood that here we are talking about salary. Withholding for an unworked period is regulated by article 137. Therefore, the employer can withhold the entire amount of wages after calculating the tax.
It is worth noting that the calculation of vacation days can only be rounded towards the employee. That is, the employer cannot hold for three days instead of 2.33. And in two whole days - maybe. This is enshrined in the Labor Code.
Can an employer sue?
A situation may arise when the calculation of unworked vacation days is made, and the amount of earnings is not enough to pay off all the debt. If the employee refuses to pay the amount in cash, the employer incurs losses.
In this case, there are two opinions that differ from each other. In the first version, they refer to Law No. 169, in which theses on regular and additional holidays are expressed. According to this legal document, the employer does not have the right to recover from the employee after his dismissal.
But many experts agree that this document contradicts a number of articles of the Labor Code. Therefore, the right to sue an employee for any employer.
Exceptions to the rules. When you can not hold
In what cases can’t deduction be made for unworked vacation days upon dismissal? The Labor Code identifies the following situations:
- Reducing the staff of the organization.
- Liquidation of the enterprise.
- Refusal of the employee to transfer to another job.
- The death of an employee.
All these situations are united by the fact that the employee cannot predict them, that is, the over-spending of vacation days was not due to his fault or initiative. In this case, the employer incurs losses. The employee cannot be responsible for the mistakes of the employer, this is fixed by law.
Accounting activities. Payment
The calculation of unworked days of leave upon dismissal is carried out by the personnel department. However, their work does not end there. They must issue a letter of resignation, and based on it draw up a note-calculation.
However, accounting comes into play. Withholding for unworked vacation days upon dismissal is carried out by accountants.
After receiving the order of dismissal, which spells out the days that the employee “walked” for the unworked time, the accounting department proceeds with the calculations. To do this, you need to take the billing period, which was used to calculate vacation pay. That is, if an employee rested in June and leaves in September, twelve months from June to May, and not from September to August, are taken for calculation. This is true, since the same amount is kept, which was overpaid.
Holiday pay is calculated according to a formula in which the following indicators are involved:
- The average number of days is 29.3.
- The number of days to keep.
- The number of days worked in a specific billing period.
- The amount of earnings that is included in the calculation of the average.
If all months have been worked out completely, then the total number of days worked is calculated by multiplying 12 months by 29.3. Accordingly, if an employee got settled earlier than 12 months before being fired, multiply by the number of months worked.
Withholding and taxes
The employee received his vacation pay for the entire period, even for the one that had not yet been worked out by him. But the personal income tax was also removed from the entire amount. That is, since the employer withholds the amount of payment, he must return the tax withheld from the employee. This rather difficult moment is explained by the specialists of the Ministry of Finance. It is worth noting that the deduction code for unworked vacation days in the certificate 2-NDFL is missing. However, in the 1C program, a situation may arise when this amount is reflected in the certificate using code 2012 as compensation for unused vacation, but with a minus. But since there was no mistake on the part of the employer in the month when deductions from vacation were made, no additional amendments need to be made.
After calculating the amount to be withheld, the employer must notify the employee that he can return part of the tax withheld earlier. After a written statement by the employee, you can reduce the tax for the last worked period by this amount.
Basic wiring. Typical situation
What are the accountant's next steps after calculating the deduction amount for unworked vacation days? Postings. It is their compilation that can also cause difficulties, especially for a novice specialist.
Typical postings are based on the fact that deduction is made from an employee of the administrative apparatus.
In order to directly reflect the payroll of the employee, use accounts 26 and 70, namely:
- The debit of account 20 and the credit of account 70.
Reflection of tax withholding from this amount is carried out using accounts 68 and 70, namely:
- Debit of account 70 Credit of account 68.
The accounting posting for deduction for unworked vacation days is displayed as Storno, that is, it is shown with a minus sign or highlighted in red. It looks in the same way as the first described wiring.
The reflection of the second posting may become the reverse in the description of the operation to reverse personal income tax for deductions. That is, this wiring is also highlighted in red or written with a minus.
The payment of the total amount to the employee, minus all deductions, is recorded using two accounts:
- 50 - in case the money is received from the cash desk.
- 51 - in case the money is paid through a bank.
- Score 70.
The wiring looks like this:
- Debit of account 70 Credit of account 50.
Thus, upon dismissal of an employee who received vacation days for unworked time, a number of questions may arise. For example:
- Is it legal to hold.
- How to calculate the days for which excess vacation pay has been accrued.
- What period should be taken into account when holding a vacation.
- What part of the salary can be withheld from the employee.
The Labor Code of the Russian Federation helps to find the answer to all these questions. Also, the employee should contact him to understand whether his rights have been infringed. The labor code helps to understand controversial issues and prove their point of view.