Weekend Working: Double Pay or Just Another Day?
Ernst & Young
Once in a while an emergency requires employees to work on the weekend. How should that work be compensated by the employer?
The general rule is double pay for working on days off (usually weekends) and on public holidays like Christmas or Victory Day. There is an alternative to this rule, which is compensation in the form of normal pay plus an additional unpaid day of rest. To prevent confusion, here is the relevant quotation from Article 153 of the Labor Code governing this issue: “At the wish of the employee, who has worked on a day off or a public holiday, s/he may be granted another day of rest. Therefore, the right to choose between these options belongs to the employee, but the choice must be approved by the employer.” So, interests of the parties are balanced in such a way that an employer is not allowed to force an employee to take another day of rest without the employee’s consent, but at the same time the employer is not obliged to comply with the employee’s wish for another day of rest.
According to the law, an employee is deemed to be protected by law since s/he has the right to choose, but in reality it is the employer who decides which option will be chosen. The employer may reject an employee’s request for another day of rest if it is inconvenient for whatever reason to give another day of rest, or the employer may convince the employee to take another day of rest if the employer wants to cut costs and to have rested and happy personnel. As practice has shown, employers prefer to provide another day of rest rather than incur double costs on their labor force. This preference involves several nuances that affect the legality of substituting the day of rest: a written application from the employee, and the length of time until the anticipated day of rest. Below, we discuss them in more detail.
Ernst & Young
The employer should get a written application from the employee regarding the substitution of working on a day off by another day of rest. Even though the law does not require the employee’s wish in writing, the existence of such an application would serve as good evidence of the employee’s wish. If there is no written application, it would be hard to prove that point if the authorities conduct an inspection or the employee makes a complaint.
The length of time until the anticipated day of rest is another nuance to be taken into consideration. The law says nothing about the time when the day of rest has to be taken. There are various legal opinions on this matter, and some commentators believe that the matter is not regulated by law. Most commentators maintain that there is no time limit for taking or granting another day of rest.
We believe that the extra day of rest should be provided within the same month in which an employee has worked on a day off. This conclusion is drawn from the fourth paragraph of Article 153 of the Labor Code, under which the daily rate of employees who receive a fixed salary depends on the monthly norm of working time. The daily rate is a criterion applied under the law for payment for work on days off and on nonworking public holidays. The daily rate should be single if the working time on a day off coupled with other working time within the same month does not exceed the limits of the monthly norm of working time. The daily rate should be double if the working time on a day off coupled with other working time within the same month exceeds the limits of the monthly norm of working time.
That simple criterion of the monthly norm of working time leads us to believe that if in any given month an employee has to work on a day off without taking another day of rest during the same month, the limits of the monthly norm of working time will surely be exceeded. Therefore, at the end of the month, an employee is entitled to double pay from the employer, end of story. The fact that both the employer and employee have agreed to set another day of rest next month or perhaps even the first day of the subsequent month makes no difference. We see that the time period for taking another day of rest is included in the time frame of the monthly norm of working time.
Thus, we think that employers must make sure that employees take another day of rest during the same month to justify single pay. Otherwise, single pay for work on a day of rest may infringe labor rights.