How Should Evening and Night Shifts Be Paid?

Maria Landau, Associate / Salans

Companies often have questions concerning evening and night shift pay, particularly since the summer of 2008. Let’s look at the reasons why.

Any shift that takes place at least 50 percent at night, namely between 22:00 and 06:00, is a night shift, and the shift immediately before the night shift is an evening shift. Soviet Resolution No. 194, which has been in force for a long time, sets the premium per hour for shift work at 40 percent for night shifts, and 20 percent for evening shifts.

The clarity of this resolution was muddied by the Russian Federation Government Resolution of July 22, 2008, No. 554 on the Minimum Premium for Night Work, adopted pursuant to article 154 of the RF Labor Code, which requires a higher rate of pay for each hour worked at night. Resolution No. 554 established that the minimum premium for night work is 20 percent of the hourly rate. Two opposing viewpoints instantly formed concerning the payment for evening and night shift work. Many companies even reduced the premium paid to night workers to 20 percent of their hourly rate. Was this the right thing to do? Did Resolution No. 554 replace Soviet Resolution No. 194? Not really.

The first viewpoint, in which one Resolution replaces the other and according to which the night shift work premium is 20 percent, rather than 40 percent, is not entirely substantiated. Firstly, a number of questions arise, in particular, what should employers do about the evening shift — is payment for the evening shift now unregulated? Secondly, why do those who adopt this position not treat shift work (evening or night) as an independent basis for paying the higher rate? After all, it is obvious that night work does not automatically constitute shift work: employees who do no shift work may work at night. The first viewpoint was supported by the RF Supreme Court in its ruling of November 12, 2008, which rejected an application for declaring section 9a of Resolution No. 194 partially invalid. Nevertheless, Russian court decisions do not form a precedent, and there has not even been a court decision declaring the respective provision of Resolution No. 194 invalid and inapplicable in the Russian Federation.

At the same time, many authoritative officials continue to maintain that the premium for night shift and evening shift work is governed by Resolution No. 194, and is separate from night work, and therefore has a separate premium from that for night work, which is governed by Resolution No. 554. This position is the stronger argument.

In the absence of clear legal regulation of this matter, it is hardly advisable to change an employer’s policy on evening shift and night shift pay, as a breach of the wage payment procedure may be grounds for administrative prosecution under art. 5.27 of the Administrative Penal Code, and material liability under Article 236 of the RF Labor Code for the period in which the wrong rate was paid for evening and/or night shift work.