ASAP, overtime and the right programmer to go to sleep
Foreword 
I want to say at the beginning about who the article is definitely not useful. Those, at least, two categories. The first is those who have never come across companies at all, or have their own startup and are working exclusively on themselves. The second category is those who, even after reading this article of mine, think that his place of work is the most beautiful thing, and in such conditions he wants to spend his entire career and not want anything more.
For those who work in conditions where they have already experienced the concepts - deadlines, overtime, ASAP, work on weekends, is dedicated to ...
So, as the audience of Habr is people from different countries, and my information is whistling out from the legislation of Ukraine, I will try to highlight the most common things that unequivocally correspond to all countries. But sometimes, I will refer to the legislation of Ukraine (unfortunately for the majority of the Habr audience). All conclusions were made by me after studying the legislative framework, as well as obtaining a second higher education in the field of jurisprudence. Surprisingly, many new things for yourself can be brought out, just having looked through the laws, let's start:
What can a programmer have responsibilities to the company?
')
There are two main types of legal relationship between employer and employee:
Selling the result of the work (the first option) is when the programmer gets a job under a contract, as an entrepreneur. He is responsible to the employer for the performance of his duties on time. Under these conditions, the programmer acts as a kind of “company”; in most cases, he can legitimately hire another programmer to do the work assigned to him. He is not bound by the time frame of his working day and the choice of place of work. As soon as the employer, hiring a contract programmer, establishes an 8-hour working day in the office, the relationship between the employer and the programmer begins to be labor relations (this is the second type of relationship) and violates many of the programmer's rights (more on that later).
Selling your life time (this option is often called the device according to the labor book). In this embodiment, the programmer sells his life time. He gets a job and gives the company eight hours a day, during which the company is responsible for it and has the right to assign tasks to it, in accordance with the position. Life time is the most expensive resource, which is why, when buying this resource, the company allocates significantly more resources to your security. The programmer will pay the pension fund investments in the ratio of his s / n, and not the minimum fee that the programmer himself pays as an entrepreneur. This means that his pension will be more. The company takes on many obligations and, if over the years, for example, the programmer sits in the middle of a day, then the staff member has many chances to beat out the payment for treatment and additional payments. A staff programmer is required to provide vacation in each year, if during the year the programmer (even if on his own initiative) did not go on vacation, he would be paid a monthly salary for dismissal because he was not on vacation for a year. In other words: three years without leave are three full salaries for dismissal. In the case of a contract, any such costs are quite difficult to settle, because the contract does not always stipulate as many nuances as are stipulated in the labor code.
Why do companies love the second option
Many may argue that all of the above, with regard to those who work under the labor book, can be easily attributed to contract servicemen. At first glance, it is - contract servicemen are being released on paid leave, etc. But, in fact, everything is more complicated. Holidays at the contract, most often, in general, no! And the agreement on his vacation is just a personal promise of the company, which is not supported by anything. And moreover, no one will reimburse in cash vacation, which was not taken. At any time, the company may simply refuse. As in the other rights.
Companies are very fond of this method for one simple reason - this is a typical tax evasion! For, if a programmer is issued as a private entrepreneur, he uses many benefits and pays a rather small tax, which is orders of magnitude lower than the taxes that companies are forced to pay per person in the state. And it turns out that for the state the company signs a contract with a third-party entrepreneur and, thus, this entrepreneur will pay a small tax. But, in fact, most often, the company will be forced to work in the mode of working relationships, like any regular employee.
I think it became clear that the most correct way is to work in the labor book. This is more profitable than a contract for many reasons. And it is about this form we will discuss further.
What is not required by the programmer
The obligations of the programmer end exactly where his rights begin. As soon as the 8-hour working day comes to an end, the programmer is no longer required to continue to be at the workplace. If a person likes programming, he can do it at home - he can learn, he can grow as a programmer, for that there is no need to continue to perform any task for work.
It is necessary to perfectly understand that everything that has been done for the company will remain its property. It is very likely that if you make a significant contribution to any part of the code, your authorship will remain unknown, that is, when you apply for the next job, you will have to go through a competition in the general queue. So it is very important to devote your own time to yourself, and not donate for free to the company.
If the ASAP task came at the very evening, and the programmer did not do anything for 7 hours, it was not the programmer’s fault. 7 hours, which he read his favorite book, as there was no task - this is exactly what he was obliged to do and everything else is a management problem. Moreover, the programmer has no right to order to stay at work longer! There are rigid frameworks in which the company is able to force an employee to overtime. For Ukraine (for Russia, these frames are similar) - these frames are such that they allow overtime (Article 62):
As you can see, it is very little-likely that the work of a programmer can fall under this standard. The chief, who instructs to overtime, commits a misconduct! And, in which case, the programmer can boldly sue him (not for the company, but for a specific person who has exceeded his authority).
Suppose that the boss got sane and asks the programmer about overtime, because otherwise the project will not be delivered on time. We are all human and agree to help. Moreover, if the company becomes worse, it will definitely affect the s / n programmer.
So, what about the overtime, does the company owe the programmer?
First, according to Article 65 of the Code of Laws on the Work of Ukraine , an employee cannot be asked for overtime for more than 4 hours two days in a row, or more than 120 hours per year. More than this rule, the boss, who has decided to give such an order, shines no longer just an administrative responsibility, but also an article on the abuse of his powers. A peacefully recorded request to stay on the recorder - essentially unleashes the programmer's hands. It should be understood that the requests of the authorities should be documented, so for this reason, pall to resort to self-documentation. According to the Law on Information (art. 21, clause 4), information on violation of rights in Ukraine cannot be a commercial secret, with the exception of national security issues. And this means that a request from a manager who directly violates your rights can NOT be a trade secret and the policy of not disclosing this request is in no way distributed.
Every hour of overtime must be paid twice as much! In other words, if a programmer came to work at 9, had lunch only 10 minutes and 45 minutes was forced to work and leaves at 18, then he already has 45 minutes of overtime, for which he must be paid. At the same time, the size of your salary cannot change on the basis of how often you overtime, but only on the basis of the work results within 8 hours of the working day, otherwise it will be an incentive to overtime.
You must understand that overtime can not be at night or on weekends. In case of a gross violation of a series of rights at once (work until the night, and then another at the weekend), you can safely go to court. Night time according to the law is defined as the interval from 22x to 6.
We must perfectly understand that any creative work, which is also programming, is associated with risks. And these risks legally lie on the employer. It is perfectly normal if the programmer chose the wrong way to solve the problem and in a day (and even more) did not come to a constructive result, and even more, came to the need to solve everything anew in another way! It’s not normal when such mistakes are made every time, then this is already prof. not suitability. Otherwise, the risk of such an outcome should be provided by managers, and if the programmer failed to solve the problem in 8 hours, he can easily go home. The exceptions are tasks for which a clear solution algorithm has been worked out, unswervingly following which programmer solves the problem in the allotted 8 hours of the day.
How to protect yourself in violation of rights
The most effective way - the court! In Ukraine, in 99 percent, the court takes the side of the working party, of course, if its demands are legitimate. Many employees do not try to protect their rights for several reasons:
The first point is the place to be, but it is very easy to secure yourself. It is necessary to create a trade union of workers (programmers) in the enterprise (in the company). After that, the company can not dismiss or reduce the s / n, without permission of the trade union. And by creating a union, the employee protects himself from such problems. At a minimum, he will not be fired and his salary will not be lowered to him, and most likely fearing will be encouraged in every possible way.
How to establish your union?
In Ukraine, it is incredibly easy!
A union can be created by at least three employees. At the same time, a trade union may not be created by employees of the same enterprise (organization). And the trade union itself will be created from the moment of the adoption of the decision on the creation by the members of the trade union and the notification of the above standing body of the trade unions.
So, all that is needed is to notify the higher authority. After that: no engineer of the organization will be dismissed or demoted, only because he did not agree to “after” or “voluntarily” stay after 18 years to work on another project. This very notification is the protocol of the meetings of the trade union committee, which is created in a free form and submitted to the main trade union body of the country, which is obliged to give an answer within a month’s term and officially confirm the creation of a trade union.
* Here is an excellent and detailed article on how to create a trade union in Ukraine.
If you do not work on labor, but prefer a contract, then your rights are significantly narrowed. The main thing here is to understand that in any country there is a hierarchy on the importance of all NLAs (Regulatory Legal Acts), and the agreements in it are located significantly lower than any state laws. So if any norm is against the law or, for example, the contract has clear signs of a working relationship (it’s not the result that is required of you but the time spent at work), then you can safely ignore such a rule in the contract.
findings
What exactly should the company:
What the company does not have the right to demand from the programmer:
How to deal with violation of your rights:
If you are interested, please come and join our process of creating the first trade union of protecting the rights of programmers in Ukraine! Your rights are in your hands.
Afterword
Yes, there are people who have fallen into the cell where they are satisfied with working for the benefit of the company from morning to evening (that is, the company makes it work) or there are people to whom the company treats adequately from the very beginning (this is my version). All this does not negate the fact that they have their own rights and that, perhaps, sometime they will have to be defended.
UPD: need to clarify some information that seemed clear to me. Many paragraphs of the article suggest that all possible peaceful ways to resolve problematic issues have already been tested. Or you are in a situation where you do not know where to turn! Each case must be tried to solve it exclusively by peaceful means, without involving government agencies.
It is also worth noting that the trade unions provide social protection to the worker and allows you to expect help in case of problem situations. They give, albeit small, but a guarantee that when they apply for a new job, the conditions will meet the minimum established by law (work hours, payments, etc.).
I want to say at the beginning about who the article is definitely not useful. Those, at least, two categories. The first is those who have never come across companies at all, or have their own startup and are working exclusively on themselves. The second category is those who, even after reading this article of mine, think that his place of work is the most beautiful thing, and in such conditions he wants to spend his entire career and not want anything more.
For those who work in conditions where they have already experienced the concepts - deadlines, overtime, ASAP, work on weekends, is dedicated to ...
So, as the audience of Habr is people from different countries, and my information is whistling out from the legislation of Ukraine, I will try to highlight the most common things that unequivocally correspond to all countries. But sometimes, I will refer to the legislation of Ukraine (unfortunately for the majority of the Habr audience). All conclusions were made by me after studying the legislative framework, as well as obtaining a second higher education in the field of jurisprudence. Surprisingly, many new things for yourself can be brought out, just having looked through the laws, let's start:
What can a programmer have responsibilities to the company?
')
There are two main types of legal relationship between employer and employee:
- Selling work result;
- Selling your life time.
Selling the result of the work (the first option) is when the programmer gets a job under a contract, as an entrepreneur. He is responsible to the employer for the performance of his duties on time. Under these conditions, the programmer acts as a kind of “company”; in most cases, he can legitimately hire another programmer to do the work assigned to him. He is not bound by the time frame of his working day and the choice of place of work. As soon as the employer, hiring a contract programmer, establishes an 8-hour working day in the office, the relationship between the employer and the programmer begins to be labor relations (this is the second type of relationship) and violates many of the programmer's rights (more on that later).
Selling your life time (this option is often called the device according to the labor book). In this embodiment, the programmer sells his life time. He gets a job and gives the company eight hours a day, during which the company is responsible for it and has the right to assign tasks to it, in accordance with the position. Life time is the most expensive resource, which is why, when buying this resource, the company allocates significantly more resources to your security. The programmer will pay the pension fund investments in the ratio of his s / n, and not the minimum fee that the programmer himself pays as an entrepreneur. This means that his pension will be more. The company takes on many obligations and, if over the years, for example, the programmer sits in the middle of a day, then the staff member has many chances to beat out the payment for treatment and additional payments. A staff programmer is required to provide vacation in each year, if during the year the programmer (even if on his own initiative) did not go on vacation, he would be paid a monthly salary for dismissal because he was not on vacation for a year. In other words: three years without leave are three full salaries for dismissal. In the case of a contract, any such costs are quite difficult to settle, because the contract does not always stipulate as many nuances as are stipulated in the labor code.
Why do companies love the second option
Many may argue that all of the above, with regard to those who work under the labor book, can be easily attributed to contract servicemen. At first glance, it is - contract servicemen are being released on paid leave, etc. But, in fact, everything is more complicated. Holidays at the contract, most often, in general, no! And the agreement on his vacation is just a personal promise of the company, which is not supported by anything. And moreover, no one will reimburse in cash vacation, which was not taken. At any time, the company may simply refuse. As in the other rights.
Companies are very fond of this method for one simple reason - this is a typical tax evasion! For, if a programmer is issued as a private entrepreneur, he uses many benefits and pays a rather small tax, which is orders of magnitude lower than the taxes that companies are forced to pay per person in the state. And it turns out that for the state the company signs a contract with a third-party entrepreneur and, thus, this entrepreneur will pay a small tax. But, in fact, most often, the company will be forced to work in the mode of working relationships, like any regular employee.
I think it became clear that the most correct way is to work in the labor book. This is more profitable than a contract for many reasons. And it is about this form we will discuss further.
What is not required by the programmer
The obligations of the programmer end exactly where his rights begin. As soon as the 8-hour working day comes to an end, the programmer is no longer required to continue to be at the workplace. If a person likes programming, he can do it at home - he can learn, he can grow as a programmer, for that there is no need to continue to perform any task for work.
It is necessary to perfectly understand that everything that has been done for the company will remain its property. It is very likely that if you make a significant contribution to any part of the code, your authorship will remain unknown, that is, when you apply for the next job, you will have to go through a competition in the general queue. So it is very important to devote your own time to yourself, and not donate for free to the company.
If the ASAP task came at the very evening, and the programmer did not do anything for 7 hours, it was not the programmer’s fault. 7 hours, which he read his favorite book, as there was no task - this is exactly what he was obliged to do and everything else is a management problem. Moreover, the programmer has no right to order to stay at work longer! There are rigid frameworks in which the company is able to force an employee to overtime. For Ukraine (for Russia, these frames are similar) - these frames are such that they allow overtime (Article 62):
- When carrying out work necessary for the defense of the country;
- When carrying out civilian necessary works (restoration of water / electrical support);
- If it is necessary to complete the work, if its interruption can lead to the death of people;
- For carrying out loading and unloading works, in the presence of danger of accumulation of freights;
- In case of non-appearance of an employee who accepts a shift in case the work does not provide for a break.
As you can see, it is very little-likely that the work of a programmer can fall under this standard. The chief, who instructs to overtime, commits a misconduct! And, in which case, the programmer can boldly sue him (not for the company, but for a specific person who has exceeded his authority).
Suppose that the boss got sane and asks the programmer about overtime, because otherwise the project will not be delivered on time. We are all human and agree to help. Moreover, if the company becomes worse, it will definitely affect the s / n programmer.
So, what about the overtime, does the company owe the programmer?
First, according to Article 65 of the Code of Laws on the Work of Ukraine , an employee cannot be asked for overtime for more than 4 hours two days in a row, or more than 120 hours per year. More than this rule, the boss, who has decided to give such an order, shines no longer just an administrative responsibility, but also an article on the abuse of his powers. A peacefully recorded request to stay on the recorder - essentially unleashes the programmer's hands. It should be understood that the requests of the authorities should be documented, so for this reason, pall to resort to self-documentation. According to the Law on Information (art. 21, clause 4), information on violation of rights in Ukraine cannot be a commercial secret, with the exception of national security issues. And this means that a request from a manager who directly violates your rights can NOT be a trade secret and the policy of not disclosing this request is in no way distributed.
Every hour of overtime must be paid twice as much! In other words, if a programmer came to work at 9, had lunch only 10 minutes and 45 minutes was forced to work and leaves at 18, then he already has 45 minutes of overtime, for which he must be paid. At the same time, the size of your salary cannot change on the basis of how often you overtime, but only on the basis of the work results within 8 hours of the working day, otherwise it will be an incentive to overtime.
You must understand that overtime can not be at night or on weekends. In case of a gross violation of a series of rights at once (work until the night, and then another at the weekend), you can safely go to court. Night time according to the law is defined as the interval from 22x to 6.
We must perfectly understand that any creative work, which is also programming, is associated with risks. And these risks legally lie on the employer. It is perfectly normal if the programmer chose the wrong way to solve the problem and in a day (and even more) did not come to a constructive result, and even more, came to the need to solve everything anew in another way! It’s not normal when such mistakes are made every time, then this is already prof. not suitability. Otherwise, the risk of such an outcome should be provided by managers, and if the programmer failed to solve the problem in 8 hours, he can easily go home. The exceptions are tasks for which a clear solution algorithm has been worked out, unswervingly following which programmer solves the problem in the allotted 8 hours of the day.
How to protect yourself in violation of rights
The most effective way - the court! In Ukraine, in 99 percent, the court takes the side of the working party, of course, if its demands are legitimate. Many employees do not try to protect their rights for several reasons:
- Fear pressure from management;
- They do not know where and how to apply.
The first point is the place to be, but it is very easy to secure yourself. It is necessary to create a trade union of workers (programmers) in the enterprise (in the company). After that, the company can not dismiss or reduce the s / n, without permission of the trade union. And by creating a union, the employee protects himself from such problems. At a minimum, he will not be fired and his salary will not be lowered to him, and most likely fearing will be encouraged in every possible way.
How to establish your union?
In Ukraine, it is incredibly easy!
A union can be created by at least three employees. At the same time, a trade union may not be created by employees of the same enterprise (organization). And the trade union itself will be created from the moment of the adoption of the decision on the creation by the members of the trade union and the notification of the above standing body of the trade unions.
So, all that is needed is to notify the higher authority. After that: no engineer of the organization will be dismissed or demoted, only because he did not agree to “after” or “voluntarily” stay after 18 years to work on another project. This very notification is the protocol of the meetings of the trade union committee, which is created in a free form and submitted to the main trade union body of the country, which is obliged to give an answer within a month’s term and officially confirm the creation of a trade union.
* Here is an excellent and detailed article on how to create a trade union in Ukraine.
If you do not work on labor, but prefer a contract, then your rights are significantly narrowed. The main thing here is to understand that in any country there is a hierarchy on the importance of all NLAs (Regulatory Legal Acts), and the agreements in it are located significantly lower than any state laws. So if any norm is against the law or, for example, the contract has clear signs of a working relationship (it’s not the result that is required of you but the time spent at work), then you can safely ignore such a rule in the contract.
findings
What exactly should the company:
- Pay double every minute over 8 hours a day working for the company;
- Pay every day of vacation that you received less in the year in cash equivalent;
- Evaluate your performance purely by the results that a programmer shows during official working hours.
What the company does not have the right to demand from the programmer:
- Work above the norm;
- Do not pay overtime or pay with a delay, or not double the amount;
- To ask the programmer for overtime work more permissible norms (4 hours, for two days).
How to deal with violation of your rights:
- Sue;
- Establish a union.
If you are interested, please come and join our process of creating the first trade union of protecting the rights of programmers in Ukraine! Your rights are in your hands.
Afterword
Yes, there are people who have fallen into the cell where they are satisfied with working for the benefit of the company from morning to evening (that is, the company makes it work) or there are people to whom the company treats adequately from the very beginning (this is my version). All this does not negate the fact that they have their own rights and that, perhaps, sometime they will have to be defended.
UPD: need to clarify some information that seemed clear to me. Many paragraphs of the article suggest that all possible peaceful ways to resolve problematic issues have already been tested. Or you are in a situation where you do not know where to turn! Each case must be tried to solve it exclusively by peaceful means, without involving government agencies.
It is also worth noting that the trade unions provide social protection to the worker and allows you to expect help in case of problem situations. They give, albeit small, but a guarantee that when they apply for a new job, the conditions will meet the minimum established by law (work hours, payments, etc.).
Source: https://habr.com/ru/post/285484/
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