The quarantine, which is accompanied by the inability of businesses to function properly, often results in optimization of the payroll due to stagnation, or in general, the cessation of financial inflow to businesses. In other words, during quarantine, an employer can look for ways to stop spending the same amount of money on employees’ wages as it did during the period when the company regularly received funds from the product it was selling.
What are the best possible scenarios for an employer?
The employer’s first step in this direction may be to request the employee to take an annual paid leave. By agreeing to such an offer, the employee will actually help its employer and receive the statutory financial compensation. However, in this case, one should be understood that the law provides for a limited number of days of such leave, namely 24 days a year. Having taken an annual vacation for a quarantine period, the employee will not be able to rely on it until the end of the current year.
Another way an employer can go is to ask the employee to take a vacation without saving its salary (the so-called “at its own expense”). In such a case, the employee should be aware that this type of leave implies his or her mandatory consent, which is expressed in the leave application. There is no other legal way to send an employee on vacation without saving salary. No application with the employee’s own signature – no leave. Any fact of duress from the employer, if proven, to force the employee to write an application and take a vacation “at its own expense” may result in the imposition of an administrative fine of up to UAH 1 700 on the employer for every proven fact of such coercion.
In addition, such actions will also entail criminal liability in the form of a fine of up to UAH 51,000, deprivation of the right to occupy certain positions for a term up to three years, correctional work for a term up to two years (one of the listed). If the fact of duress from the employer is proved again within a year, or if it is committed against a minor, pregnant woman, single parent, mother or person who replaces them and has a child under the age of 14, or a child with a disability, then the liability will increase significantly. The head of the company will be threatened with a fine of up to UAH 85,000, deprivation of the right to occupy certain positions for a term up to five years, correctional work for a term of up to two years, arrest for a term up to six months (one of the listed).
However, if the employer fails to agree with employees on taking vacations, it is most likely that it will declare the downtime. The company downtime means the suspension of its work, which is caused by the lack of organizational or technical conditions necessary to perform the work, or caused by an inevitable force (among which is a quarantine, caused by the spread of a viral disease across the country / world), or other circumstances. However, a downtime is also announced by those businesses that are worried about their employees but cannot bear the salaries without regularly receiving funds from their customers.
In any case, a company that declares a downtime is obliged to pay at least 2/3 of the salary to all their employees under an employment contract during the downtime.
At the same time, the employee can either be in its workplace or absent. Actually, this matter is determined in the order of the head of the company, who makes the decision to conduct a downtime, and with which each employee must be familiarized by means of signing thereof. If the employee does not sign the order, it is not informed that the company is in downtime. If the employee is not informed that the company is in downtime, the employer should pay it full salary and not the above-mentioned share thereof.
If offered a part-time or part-week job, the employee should understand that such a transfer will be accompanied by a proportional reduction in its salary. The trick to which employers go under this option is to ask the employee to write an application according to which the latter allegedly asks for transfer thereof to a part-time or part-week job. Otherwise, in case of absence of an employee’s application, the employer must notify the employee of a relevant transfer 2 months before the date of such a transfer. One should also consider the necessity to coordinate some changes with the trade unions or bodies authorized to represent the staff. Otherwise, the employer faces the fines and other liability described above.
What if an employer requests an employee in a voluntary-forced manner to take a paid leave or leave “at its own expense,” or transfers an employee to a part-time or part-week job without giving it a proper notice?
1. If the employee does not have the desire/opportunity to take a vacation, it has the right to refuse. There is a need to insist on the one’s rights. To express the employer that the employee aware of such and of what the law is.
The fact that without the consent of an employee it cannot be sent on leave “at its own expense” is provided for in Articles 25 and 26 of the Law of Ukraine “On Vacation”. The fact that during the downtime an employee must be paid not less than 2/3 of its salary is specified in Article 113 of the Labor Code of Ukraine.
2. If this is not enough, and the employer still requires the employee to leave, or refuses to pay it time off, or regularly pays less than the statutory minimum (2/3 of salary), it is necessary to report the violation of the employee’s rights by calling the tip line of the State Labor Service of Ukraine, or its territorial administration, and/or the police by telephone number 102.
If you have any questions about optimizing your wage bill, please contact SDM Partners Law Firm:
Managing Partner Dmytro Syrota firstname.lastname@example.org or
Lawyer Vladyslav Kepko email@example.com