May 11, 2021 4674

Who owes who: how overtime and covering for colleagues is paid

The pandemic and all the lockdowns it caused prompted a revision of established relations between employers and employees. Remote work, the need to cut expenses, long sick leaves due to coronavirus - all this has changed the labor market significantly. Some have dropped out from the race altogether, either by choice or by necessity, others have been forced to work even harder, making up for their absent colleagues. As is often the case in a crisis, problems have now surfaced that used to go unnoticed. The importance of the “human factor” has also increased dramatically, namely in terms of the ability to find common ground, to listen to and understand others, and to appreciate everyone's contribution to the cause. Oleksiy Golovin, lawyer and expert on labor law, spoke with the Mind about issues concerning work remuneration in today’s realities and shared what employees can do when management is mistreating them in this regard.

How extra work is paid

As both the Constitution and the Labor Code of Ukraine state, any work requires remuneration. When an employee, in addition to his own duties, is called on to perform those of his colleague who’s temporarily absent, he gets a bonus - for what is worded either as working two job positions at once or as performing the work of a temporarily absent employee. This is expressly stated in Article 105 of the Labor Code.
As for how large of a bonus we’re talking about, this should normally be determined in the collective agreement. If that’s not the case, the amount must be established either in a separate bylaw on remuneration, or in an order by the company’s director. So, when applying for a job, it’s worth asking whether they have a collective agreement.
The bonus in question is usually 50% of the salary for the main job.
That’s the gist of it. Now let us get into more detail.

What problems could arise

To determine whether the employer must pay extra, it’s necessary to have an understanding of several factors.

First, whether an order has been issued stating that the employee would be doing the absent colleague’s job.

Secondly, is there evidence of the employer requiring the employee to do that? If so, there should be a bonus.

If there was no such requirement on the part of the employer and the employee volunteered for the extra work, that’s a different story. It might even get the volunteer into trouble for neglecting his or her duties to do other people’s work for them.

Instead of bonus pay, this could result in a reprimand or even dismissal (for instance, under paragraph 3, Article 40 of the Labor Code). So it might not be the best idea for employees to try and abuse their rights.

Employees often agree among themselves to cover for one another for a certain period of time. Employers are seldom aware of these unofficial arrangements, which is why it’s unreasonable to expect extra pay for this. For instance, if an employee gets sick and someone else gets to pick up the slack, getting a bonus will likely be impossible, since on paper it was the sick employee doing all the work. Also, everyone decides for themselves what to spend their free time on.

If it’s the employer who volunteers an employee to perform extra work, then such labor deserves remuneration. It’s also worth making sure that this arrangement is reflected in documents. In this case, the employee will get a bonus, either for working two job positions or for performing the work of the temporarily absent employee.

If the employer fails to fulfill his obligations, then the employee can turn to a court or, for example, the State Labor Service. Upon examining the complaint, the latter may perform an inspection to establish whether a violation has indeed taken place. The chances of securing such an inspection will be higher if there’s proof that the employee was given extra work. For instance, if you’re a radio host of a weekend show, you could present recordings of shows that you hosted on what would normally have been your day off.

Can there be some other scenario?

Labor law has the concept of transfer: it’s when the employer transfers an employee to a different department or workplace without changing the employee’s main functions, duties or specialization.

In such a situation, one should study the employee’s job description and the way his work schedule is regulated.

Thus, if it turns out that the extra work is not actually considered to be “extra” and that the employee is expected to perform such tasks anyway, there can be no bonus to speak of, especially if it all happens within normal work hours and without an increase in the workload.

How OT is regulated

Overtime gets double pay.
If the extra work in place of an absent colleague is done on one’s day off, the employee is compensated either in the form of double pay or an additional day off.

To understand how an employee can protect his rights, it’s necessary to find out how the work hours were recorded, what schedule was set for him: whether he was working on a workday or on his day off, whether he worked overtime or during normal hours. It’s also necessary to establish how exactly the employer assigned the employee extra tasks, on whose initiative the employee showed up for work, whether it was a workday or his day off, or he worked from home.

How to find out the amount of hours clocked

If an employee wants to find out how his salary is calculated and what elements it entails, he can send a written inquiry to the employer, asking for details on wage calculation over a certain period.

If the employee does not understand his responsibilities, he can ask for a copy of the employment contract, job description and internal regulations - all these being documents that determine one’s schedule and work regime, including workdays and days off.

He may also ask for a timesheet - a document which shows the date and duration of one’s work and which every company must have. If the hours during which the employee was covering for his colleague have been recorded, the timesheet will show it.
As mentioned above, if the employee decides that his rights have been violated, he can seek redress in court or file a complaint with the State Labor Service.

How quarantine and remote work affected the relationship between employers and employees

Businesses these days fall into two groups.

The first group includes companies that have - successfully and in a timely manner - transitioned to remote work, adapting their processes to remote task setting and implementation control. These employers managed to cope with the new challenges without much difficulty, mostly thanks to modern tools like CRM systems.
This approach ensures smooth interaction between employees. Everyone knows what their responsibilities are and what they must do, how they are assigned their tasks and how to report their progress.

The other group consists of companies that were unprepared for remote work due to relying too much on hands-on control. In these companies, the efficiency of employees depended on their immediate supervisors, who were closely monitoring their progress and the use of their time.
These businesses have found it difficult to adapt to remote work, since the loss of even a single supervisor would break their whole system for assigning tasks and monitoring their progress. For the system to work properly, its elements must be interchangeable, allowing for replacing one employee with another when necessary.

These days there are more and more companies with well-oiled internal processes and the ability to shift between different work formats. Office is not the main place of work for them and is thus something they can save money on. Companies are reducing their office space to a bare minimum, having as many employees as possible working from home. After all, it’s much more convenient.
Legislation has finally caught up as well: it is now possible to officially regulate remote work, work from home and flexible work hours.