How to compensate for not taking paid annual leave, and can I claim compensation for not taking paid

If the annual leave is not taken, the compensation standard is that the employer shall calculate the number of days that the employee should take the unused annual leave, and pay the employee 300% of the employee's daily wage income, which includes the salary income paid by the employer to the employee during the normal working period.

1. The number of days of annual leave.

Annual leaveAccording to Article 3 of the Regulations on Paid Annual Leave for Employees, employees who have worked continuously for more than one year can enjoy paid annual leave. The number of days of leave per year is 5-15 days, and the annual service experience of 1 year but less than 10 years can be paid 5 days of leave; 10 days of paid leave for each year with 10 years of service but less than 20 years; 15 days of paid leave per year for 20 years of service. If an employee changes units, annual leave shall also be arranged according to the employee's actual length of service.

According to the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises, the number of annual leave days of the current year shall be calculated according to the remaining working days of the new employer, and the part less than one full day after conversion shall not be entitled to annual leave.

2. Legal provisions on annual leave.

Article 45 of the Labor Law stipulates: "The State shall implement a paid annual leave system. Employees who have worked continuously for more than one year are entitled to paid annual leave.

The specific measures are stipulated by ***, and the "Notice on the Issue of Employee Leave" "determines the number of days of leave for employees, which shall be different according to the work tasks and the qualifications and positions of various personnel, and shall not exceed 2 weeks at most. Article 45 of the Labor Law of the People's Republic of China clearly stipulates: "The State shall implement a paid annual leave system.

Employees who have worked continuously for more than one year are entitled to paid annual leave. The specific measures are stipulated by ***. However, since the promulgation of the Labor Law, there has been no specific method for employees to enjoy paid annual leave in accordance with the provisions of this article of the Labor Law.

Annual leave can be arranged in a centralized manner within one year, or it can be arranged in stages, and generally not across years. If it is truly necessary for the unit to arrange annual leave for employees across years due to the characteristics of production and work, it may be arranged across one year.

The company may be required to pay compensatory wages for unused annual leave.

According to the Regulations on Paid Annual Leave for Employees, employees of government agencies, organizations, enterprises, public institutions, private non-enterprise units, and individual industrial and commercial households with employees who have worked continuously for more than one year are entitled to paid annual leave. Sick leave exceeding a certain number of days will affect the entitlement to annual leave.

With the consent of the employee, if the employee does not arrange annual leave or the number of annual leave days is less than the number of annual leave days that should be taken, the employee shall be paid 300% of the employee's daily wage income for the number of days of unused annual leave in the current year (except for those who voluntarily give up the leave), including the salary income paid by the employer to the employee during the normal working period. At the same time, when the employer dissolves or terminates the labor contract with the employee, if the employee is not arranged to take the annual leave in the current year, the number of unused annual leave days shall be calculated according to the employee's working time in the current year and wages and remuneration shall be paid (except for less than one full day after conversion). The conversion method is laughing empty:

The number of calendar days that have passed in the current year in the unit (365 days) The number of annual leave days that the employee should enjoy throughout the year - the number of blind days of annual leave that have been arranged in the current year.

Article 10 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises stipulates that if an employer does not arrange annual leave with the consent of the employee or arranges less than the number of annual leave days to be taken, it shall pay the employee 300% of the daily wage income for the number of days of unused annual leave that should be taken during the current year, including the salary income paid by the employer to the employee during the normal working period.

According to this law, if an employee leaves the town late or files an arbitration application to demand paid annual leave wages, he or she can claim 200% of the salary compensation instead of 300%.

At the same time, Article 11 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises stipulates that the daily wage income for calculating the wages and remuneration of unused annual leave shall be converted according to the monthly salary of the employee divided by the number of monthly salary days (days). The term "monthly wage" as used in the preceding paragraph refers to the average monthly wage of an employee in the 12 months prior to the employer paying him or her wages for unused annual leave, excluding overtime wages.

If the working time of the employer is less than 12 months, the average monthly salary shall be calculated according to the actual month.

1. How to determine the working years of employees.

1. Records of employees' payment of social insuranceThe information of social insurance institutions recording employees' payment of social insurance is an important basis for comprehensively determining the working years of employees. From the records, it is clear to confirm the start time of the employee's participation in the workforce, as well as the work history of the employee in the same or different employers at each stage.

2. Since the term of the labor contract is one of the basic contents of the labor contract, if the employer does not pay social insurance for the employee in accordance with the law, the contract period determined by the labor contract is essentially the employee's working years.

3. The "Employee Roster" and "Employee Roster" prepared by the employer include the starting time of employment and the term of the labor contract. It is one of the bases for determining the number of years of service of an employee.

4. Certificate of Termination (Termination) of Labor Contract issued by the employerAccording to Article 24 of the Regulations for the Implementation of the Labor Contract Law, when the employer and the employee terminate (terminate) the labor contract, the working years of the employer are one of the necessary terms of the certificate of termination (termination) of the labor contract. This content is also one of the bases for determining the number of years of service of employees.

We know that employees are entitled to paid annual leave in accordance with the law, which is also an issue that many employees are very concerned about, but in practice, there are quite a few workers who do not understand the law, which is not conducive to protecting their own legitimate rights and interests. Let's take a look at how the paid annual leave for employees is stipulated? How do I get compensated if I don't take any leave?

According to Order No. 514, "if an employee has worked for 1 year but less than 10 years, he or she shall take 5 days of annual leave; 10 days of annual leave for those who have completed 10 years but are less than 20 years; Those who have completed 20 years of leave will take 15 days of annual leave. National statutory holidays and rest days are not included in the annual leave. ”。

If the employer is unable to arrange for the employee to take annual leave due to work needs, it may not arrange for the employee to take annual leave with the consent of the employee himself. If the number of unused annual leave days is excessive, the employer shall pay the employee 300 of the employee's daily wage, including the salary income paid by the employer to the employee during the normal working period.

2. Under what circumstances can you not enjoy the annual leave of the current year?

1. Employees enjoy cold and summer vacation in accordance with the law, and the number of vacation days is more than the number of annual leave days;

2. The employee takes personal leave for more than 20 days and the unit does not deduct wages in accordance with the regulations;

3. Employees who have worked for 1 year but less than 10 years have taken sick leave for more than 2 months;

4. Employees who have worked for 10 years but less than 20 years and have taken sick leave for more than 3 months;

5. Employees who have worked for more than 20 years and have taken sick leave for more than 4 months.

3. How to calculate the salary if the annual leave should be taken but not taken.

If the employer is unable to arrange for the employee to take annual leave due to work needs, it may not arrange for the employee to take annual leave with the consent of the employee himself. For the number of days of annual leave that should be taken by the employee, the employer shall pay the annual leave salary and remuneration according to 300 of the employee's daily wage income.

When an employee dissolves or terminates a labor contract with his or her former employer, if he or she fails to arrange for the employee to take full annual leave in the current year, the number of days of unused annual leave shall be calculated according to the employee's working hours in the current year and the wages and remuneration for the untaken annual leave shall be paid, but the wages and remuneration for the unused annual leave shall not be paid for the part less than one full day after conversion.

If the employer does not arrange annual leave with the consent of the employee or arranges the number of annual leave days for the employee to be less than the number of annual leave days that should be taken, the employer shall pay the employee 300% of the daily wage income for the number of days of unused annual leave that the employee should take during the current year, including the salary income paid by the employer to the employee during the normal working period.

If an employer arranges for an employee to take annual leave, but the employee submits in writing that the employee does not take the annual leave due to his/her own reasons, the employer may only pay the employee's salary income during the normal working period.

Here are some things to keep in mind:

1. The employer must obtain the consent of the employee if he does not arrange the annual leave of the employee;

2. It is the legal obligation of the employer to arrange leave for employees, and it is not based on the employee's application.

3. Except for the annual leave arranged by the employer and the employee submits in writing not to take the annual leave, if the employee does not take the annual leave, the employer shall pay 300% of the salary remuneration to the employee for the number of days of leave.

If the unit does not arrange for employees to take annual leave and does not give annual leave wages and remuneration in accordance with the provisions of these Regulations, the local people's personnel department or labor and social security department at or above the county level shall order corrections within a time limit in accordance with its authority; If the correction is not made within the time limit, in addition to ordering the unit to pay the annual leave salary, the unit shall also pay additional compensation to the employee according to the amount of the annual leave salary and remuneration; For those who refuse to pay annual leave salaries, remuneration, and compensation, and belong to the units of civil servants and personnel managed with reference to the Civil Servants Law, the directly responsible managers and other directly responsible personnel are to be given sanctions in accordance with law; If it belongs to another unit, the labor and social security department, personnel department, or employee shall apply to the people's court for compulsory enforcement.

1. How to apply for paid annual leave.

According to the provisions of the state on the annual leave system for employees, employees can enjoy paid annual leave after working continuously for more than 12 months. For employees who have newly entered the current employer from other units, "continuous service for more than 12 months" refers to the continuous working time of the employee in the original employer and the current employer.

In this regard, an employee who has worked continuously for more than 12 months includes both the situation where the employee has worked for the same employer for more than 12 consecutive months, and the situation where the employee has worked for different employers for more than 12 consecutive months.

Regarding the determination of cumulative working hours, it includes the period during which employees are engaged in full-time work in government agencies, groups, enterprises, public institutions, private non-enterprise units, individual industrial and commercial households with employees, etc., as well as the period of military service in accordance with the law and other periods that can be counted as length of service in accordance with national laws, administrative regulations and regulations (deemed to be the working period). The cumulative working hours of an employee may be determined on the basis of the records in the file, the record of the employer's payment of social security premiums, the labor contract or other legally effective supporting materials.

Therefore, employees must have dossiers that record their working hours before they can apply for paid annual leave from their current employer.