When paying wages to an employee, you should always remember not only its size, but also about correctly made deductions. We list the basic rules that any employer should know when withholding employee salaries on their own initiative.
All deductions can be classified as follows:
- main (personal income tax, according to writs of execution);
- at the initiative of the employer (for an unpaid advance, material damage etc.);
- at the initiative of the employee (at the request of the employee).
This classification is presented in the order in which deductions should be made. In the article we will focus on deductions made at the initiative of the employer. In order to avoid mistakes and not violate labor laws, we will look at the basic rules that an employer must know and follow.
Rule 1. Deductions from wages are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws
According to Art. 137 Labor Code of the Russian Federation, deductions from wages To repay the employee's debt to the employer, the following may be done:
- for reimbursement unearned advance issued to an employee as payment for wages;
- to repay the unspent and not timely returned advance issued in connection with business trip or transfer to work in another area, as well as in other cases;
- to return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards or downtime;
- when an employee is dismissed before the end of the working year for which he has already received annual paid leave - for unworked vacation days.
In this case, there are restrictions - deductions for compensation of unworked vacation days are not made if the employee is dismissed for the following reasons:
- refusal of the employee to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner established federal laws and other regulatory legal acts RF, or the employer does not have relevant work (clause 8, part 1, article 77 of the Labor Code of the Russian Federation);
- liquidation or reduction of personnel or staff (clause 1, 2, part 1, article 81 of the Labor Code of the Russian Federation);
- change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4, part 1, article 81 of the Labor Code of the Russian Federation);
- conscription of an employee for military service or sending him to an alternative civil service replacing it (clause 1, part 1, article 83 of the Labor Code of the Russian Federation);
- reinstatement of an employee who previously performed this work, by decision state inspection labor or court (clause 2, part 1, article 83 of the Labor Code of the Russian Federation);
- recognition of the employee as disabled (clause 5, part 1, article 83 of the Labor Code of the Russian Federation);
- death of an employee (clause 6, part 1, article 83 of the Labor Code of the Russian Federation);
- the occurrence of emergency circumstances interfering with the implementation labor activity(clause 7, part 1, article 83 of the Labor Code of the Russian Federation).
The list of grounds allowing the employer to make deductions on his own initiative is closed and not subject to broad interpretation. For example, it is impossible to withhold from an employee’s salary any amounts overpaid to him due to an incorrect interpretation of regulatory legal acts.
Despite the fact that there are grounds for deduction, the employer should obtain the employee’s consent to it. If the latter is against it, even if the grounds are specified in Art. 137 of the Labor Code of the Russian Federation, then it is unlawful to make a deduction. The employer will have to resolve this issue in court. An exception when the employee’s consent is not required is the withholding of amounts for unworked vacation days.
Also, labor legislation allows the employer, in certain cases, to withhold from the employee’s wages material damage caused to the organization (Article 238 of the Labor Code of the Russian Federation).
Rule 2. The employer can make deductions only within the time limits specified by labor legislation
We discussed above cases when an employer can make deductions from an employee’s salary. Please note that each of these has limitations.
In Table 1 we list the deadlines that the employer must comply with.
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Please note: if the employer does not formalize and make a deduction within a month on the basis of Art. 137 of the Labor Code of the Russian Federation (return of advance payment, repayment of debt, incorrectly calculated payments), then he will have to resolve the issue of withholding through the court.
In the case of material damage, there are also restrictions: if the amount of damage exceeds the employee’s average monthly earnings and the monthly period has expired, then deduction can only be made on the basis of a court decision.
Rule 3. The amounts of deductions established by law must be observed.
According to Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages cannot exceed 20%. Also, one should not forget about the norms of Part 1 of Art. 99 of the Labor Code of the Russian Federation: the amount of deduction from wages is calculated from the amount remaining after withholding taxes. Let's look at this issue using an example, calculating the maximum amount that can be withheld from wages for a month.
Example 1
Calculation of the maximum amount that can be withheld per month
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Manager Klimov A.N. On August 10, an advance was issued for travel expenses in the amount of 9,000 rubles. According to the advance report, which was submitted to the accounting department on August 14, the specified employee did not spend 5,000 rubles. This amount was not returned to Klimov. On August 25, the employer issued an order to withhold the amount of the unreturned advance from his wages.
The accountant accrued wages to the specified employee for August in the amount of 12,900 rubles. The employee agrees to the retention.
Let’s determine the maximum amount that can be withheld from an employee’s salary for August due to an unreturned advance:
- Let's calculate the amount of personal income tax: 12,900 × 13% = 1,677 rubles.
- Let's set the maximum deduction amount: (12,900 - 1,677) × 20% = 2,244 rubles. 60 kopecks
That is, for August from the salary of A.N. Klimov. The maximum you can withhold is an unreturned advance payment in the amount of no more than 2,244 rubles. 60 kopecks.
The remaining amount is 2755 rubles. 40 kopecks (5000 - 2224.6) will be withheld in the following months.
What if an employee quits and the final salary is not enough to fully cover the unreturned advance? What to do in this situation?
In this case, two options are possible:
- Agree with the employee on the voluntary return of the remaining amount of the unspent advance.
- Go to court if the employee refuses to voluntarily reimburse the unrefunded amounts.
Please note: Withholding limits may be increased.
According to Part 1 of Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages in cases provided for by federal laws cannot exceed 50% of the wages due to the employee.
Thus, the maximum amount of deduction equal to 50% will be if the amount under the writ of execution should be withheld from the employee at the same time, say, to recover from the employee in compensation for an outstanding loan, as well as an unreturned advance issued for travel expenses.
Let's look at an example of the procedure for determining the maximum amount for withholding on several grounds: an advance payment issued for travel expenses that was not returned on time, and collection under a writ of execution.
Example 2
Calculation of the size limit when holding for several reasons
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Auditor A.P. Kochkin On August 5, an advance payment for travel expenses in the amount of 8,000 rubles was issued. According to the advance report, which was submitted to the accounting department on August 10, the specified employee did not spend 4,000 rubles. This amount is given to A.P. Kochkin. was not returned.
Also on August 10, the organization received a writ of execution for recovery from Kochkin in compensation for the loan that was not repaid on time (the amount of compensation is 5,000 rubles).
The accountant accrued wages to the specified employee for August in the amount of 15,500 rubles. The employee agrees.
Let’s determine the maximum amount that can be withheld from wages for August:
1. Calculate the amount of personal income tax: 15,500 × 13% = 2015 rubles.
2. Set a limit on holdings for August. According to Part 1 of Art. 138 of the Labor Code of the Russian Federation, the maximum amount of deductions in this case cannot exceed 50%: (15,500 - - 2015) × 50% = 6,742 rubles. 50 kopecks
From the specified amount, at the initiative of the employer (for an advance not returned on time), the following can be withheld: 15,500 × 20% = 3,100 rubles.
3. We determine the amount that can be legally withheld from the employee’s salary for August:
6742.5 - 5000 = 1742.5 rub. (less than 3100 rub.);
4000 - 1742.5 = 2257 rub. 50 kopecks - the specified amount of an advance not returned on time can be withheld only in the next month.
That is, the following amounts are legally deducted from wages for August:
- the amount of the penalty under the writ of execution - 5000 rubles;
- advance payment not returned on time, issued for travel expenses - 1742 rubles. 50 kopecks
The maximum amount increases to 70% (part 3 of article 138 of the Labor Code of the Russian Federation):
- while serving correctional labor;
- in the recovery of alimony for minor children;
- when compensating for harm caused by an employee to the health of another person;
- when compensating for damage to persons who suffered damage due to the death of the breadwinner;
- when compensating for damage caused by a crime.
Rule 4: Deductions must be properly documented.
In order to withhold amounts from an employee’s salary on the grounds specified in Art. 137 of the Labor Code of the Russian Federation, the employer should issue an order about this. There is no form of order established by law, so the employer develops the form of the order independently. Orders should be issued within a month from the date of expiration of the period established for the return of unpaid advances, amounts calculated in error, and repayment of debts.
When deducting compensation for unworked vacation days, an order is not required to be issued.
If we're talking about about withholding amounts to pay off material damage, then you should also adhere to the one-month period. That is, the order is issued no later than one month from the date the employer has established the amount of damage caused by the employee (see Example 3).
Before this, as we have already said, the employer should obtain the employee’s consent to withhold (with the exception of reimbursement of amounts for unworked vacation days). To record the receipt of consent, several options can be proposed:
- draw up a notice of withholding, which includes a column indicating the employee’s consent;
- ask the employee to draw up a statement that he does not object to the deduction (Example 4);
- provide in the order a note indicating consent to withholding.
Example 3
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Example 4
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In conclusion, we would like to remind you that for unjustified deductions, an organization can be fined under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
Deductions from wages can be made for three reasons. The first is a writ of execution. Secondly, this decision was made by the administration. Well, the last reason is the desire of the employee himself.
Writs of execution cannot be ignored. According to them, from the employee’s salary you must deduct:
- periodic payments (for example, alimony);
- collection of property debt (if the employee does not have property or it is not enough to repay the debt);
- compensation for damage to health.
Most often, the organization of deductions from wages is carried out in relation to alimony. They can be set at a fixed amount. For example, if an employee’s earnings are constantly changing. Or as a percentage of salary (¼, ⅓ or ½ of income - depending on the number of children).
In addition to such mandatory deductions, the company's management has the right to make deductions from salaries in relation to:
- unearned advance payment issued against wages;
- unspent and not returned in a timely manner amounts issued on account in connection with transfer to work in another area, etc.;
- wages and other amounts overpaid to an employee due to a counting error or upon proof of his guilt in idle time or failure to comply with labor standards;
- amounts for unworked vacation days when an employee is dismissed before the end of the working year for which he is entitled to vacation;
- amounts of temporary disability and maternity benefits, which were paid to the employee in a larger amount due to a calculation error (for example, when calculating earnings for the billing period, an arithmetic error was made, letter of Rostrud dated October 1, 2012 No. 1286-6-1) or unlawful actions of the employee himself (for example, he hid information affecting the amount of benefits).
I have a question
We used the wrong algorithm for calculating benefits. Is this a counting error?
No, such an error cannot be called a counting or arithmetic error. Therefore, it will not be possible to withhold overpayment from the employee. Now, if you made a mistake, say, when multiplying the amount of daily earnings by the number calendar days during a period of incapacity or vacation, that’s another matter. Such a miscalculation would be precisely arithmetic.
Also, compensation for material damage that the employee caused to the organization can be withheld from the employee’s earnings. The basis here will be Articles 238 and 240 of the Labor Code of the Russian Federation. Well, if the employee himself asks to withhold some amount from his salary, then let him write a statement. Here's a sample:
I will separately provide loans to employees. Here it is more convenient to stipulate in the contract itself that you will withhold a certain part from the salary.
Withholding Amount Limits
Deductions from wages, which are carried out at the initiative of the organization, are limited to 20 percent (Article 138 of the Labor Code of the Russian Federation). They can be withheld with each income payment. However, if you simultaneously withhold money from an employee’s income both at the initiative of the administration and according to executive documents, then their total amount of deductions should not exceed 50 percent of the take-home salary. And the maximum amount of deductions can reach 70 percent of earnings, if, according to executive documents, the employee must pay:
- compensation for harm caused to health;
- compensation for damage to persons who have lost a breadwinner or caused by a crime;
- child support for minor children. Bailiffs determine the amount of alimony based on the following proportions. One child receives ¼ of the income, two children receive 1/3. For three or more children, half of the earnings will be withheld (clause 1 of Article 81 of the RF IC).
But at the same time, keep in mind an important detail: your share of deductions in any case cannot be more than 20 percent. At the same time, the requirements of executive documents are mandatory. They need to be satisfied first.
Maximum deduction amount
This means that an employee’s debt to the organization can be withheld from his income only after all obligations under writs of execution have been repaid. And if, for example, your employee pays child support for three children in the amount of half of his earnings, then you will no longer be able to collect anything additional from him. Representatives of Rostrud spoke about this in a letter dated May 30, 2012 No. PG/3890-6-1.
As for deductions from wages at the initiative of the employee, there are no restrictions. This conclusion is confirmed by the letter of Rostrud dated September 16, 2012 No. PR/7156-6-1. An employee can dispose of his earnings as he wishes if he writes an application to the company’s accounting department. In this case, the provisions of Article 138 of the Labor Code of the Russian Federation do not apply here. That is, you can hold it as long as you want and for anything.
Recovery of material damage
We will separately focus on the procedure for collecting and deducting material damage from wages. Exactly how much you can deduct from an employee depends on what kind of liability is provided - full or limited. With limited financial liability, the employee is obliged to compensate for damage in an amount not exceeding his average salary (Article 241 of the Labor Code of the Russian Federation).
However, the specific procedure for calculating it for such cases has not been determined. So you need to use general rules. Clause 4 of the Regulations on the specifics of the procedure for calculating average wages (approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922) establishes the following procedure. The calculation must be made based on the employee’s accrued wages and the time actually worked by him for the 12 previous calendar months. In this case, preceding the month in which the employee caused the damage.
The total amount of salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days on the employee’s schedule in the month in which he caused the damage. In this case, the average earnings will depend on the month of calculation. However, you cannot simply divide your annual earnings by 12. Use this formula:
Example
At the beginning of August 2014, due to the fault of A.S. Nelyubov, an employee of the organization, the server went down. The amount of material damage was estimated at 25,200 rubles. He admitted his guilt. An agreement on full liability with an employee has not been concluded, which means that no more than the average monthly salary can be recovered from him. The accountant thought so.
The employee works a regular five-day work week. The billing period is from August 1, 2013 to July 31, 2014, of which the employee worked 218 working days. Wages for these days amounted to 433,546.15 rubles. In August 2014 – 21 working days.
This means that the average monthly earnings will be:
RUB 433,546.15 : 218 days x 21 days = 41,763.62 rub.
Thus, the organization can deduct from the salary the entire amount of damage caused by it - 25,200 rubles.
In case of full financial liability, the employee is obliged to compensate the entire amount of damage (Article 242 of the Labor Code of the Russian Federation). At the same time, Article 137 of the Labor Code of the Russian Federation does not impose any restrictions on the total amount of penalties.
Full financial liability of an employee occurs only in two cases. Firstly, when a shortage of valuables entrusted to him is discovered, if he caused damage due to an administrative violation, etc. In this case, it does not matter whether an agreement on full financial liability has been concluded with the employee or not, he must compensate for the damage in full.
Secondly, in situations where an agreement on full financial responsibility has been concluded with an employee. Such an agreement can be concluded with employees whose positions are listed in Appendix 1 to Resolution No. 85 of the Ministry of Labor of Russia dated December 31, 2002. In particular, a similar contract is drawn up with cashiers, cashier-controllers, as well as with storekeepers, warehouse managers, and supply specialists and forwarders.
By the way, drivers are not on this list. Therefore, it is impossible to conclude agreements with them on full financial liability. At the same time, if the driver is found guilty of an accident, that is, administrative offense, the company will have the right to recover the entire amount of damage from him.
In some cases, financial liability may be provided for in employment contract with an employee. This is allowed in relation to deputy heads of the organization and the chief accountant (Article 243 of the Labor Code of the Russian Federation).
But the head of the organization (unlike his deputies) bears full financial responsibility, regardless of whether this is stated in his employment contract or not (Article 277 of the Labor Code of the Russian Federation).
I have a question
Is it possible to recover lost profits from an employee?
No. Deductions from wages are allowed only in respect of the amount of direct damage. That is, those losses that can be accurately calculated. It will not be possible to recover the benefit lost due to the employee’s actions (Article 238 of the Labor Code of the Russian Federation).
How to calculate the amount of withholding
First, deduct personal income tax from the employee’s salary. And from the resulting amount, calculate the amount of deductions from your salary. The fact is that the maximum amount of deductions must be calculated based on the money that the employee receives in hand.
At the same time, you have the right to withhold money, including from the advance payment of wages for the first half of the month. It's even better to do it this way. The fact is that when calculating deductions only once at the end of the month, you may be faced with the fact that the employee’s salary minus personal income tax and the advance payment already paid may not be enough to recover the entire amount.
In addition, the second part of the payment will be significantly less than the first. After all, let us remind you that there is no need to withhold personal income tax from the salary advance.
Example
Let's continue the previous example. Official salary Nelyubova is 36,000 rubles. He is not entitled to standard tax deductions.
The personal income tax amount was 4,680 rubles. (RUB 36,000 x 13%). The maximum amount that can be withheld from an employee per month is:
(RUB 36,000 – RUB 4,680) x 20% = RUB 6,264
Since this amount is less than the damage, the accountant withheld exactly 6,264 rubles from the employee’s salary for August. The remaining 18,736 rubles. (25,000 – 6264) will be deducted from the employee’s salary in the following months.
Example
In August 2014, the organization received a writ of execution to collect 16,000 rubles from employee Karpina A.S. in repayment of an outstanding loan. In addition, at the beginning of August, the employee had an unreturned and unconfirmed advance payment issued for travel expenses in the amount of 3,000 rubles.
However, if an employee compensates for damage caused to the company, the situation is somewhat different. The Labor Code deals with deductions from wages. And this is nothing more than remuneration for work (Article 129 of the Labor Code of the Russian Federation). This concept also includes various additional payments and allowances plus incentive payments, that is, bonuses. It turns out that you can withhold money from all other transfers only upon a written application from the employee. In this case, in any case, there is no need to take into account the money that the employee receives on a repayable basis. For example, in debt under a loan agreement.
How to keep money if an employee quits
Let's start with company-initiated deductions. And in this case, you also have the right to withhold no more than 20 percent from the employee’s last salary. If the last payment is not enough, the procedure depends on the specific situation.
If we are talking about, say, an outstanding loan, then just agree now with former employee how he will repay you the remaining amount of debt. The same applies to material damage or unreturned accountable amounts. The employee refuses to repay the debt? This means you will have to go to court.
But if an employee took part of the vacation in advance, it will not be possible to recover from him the underdeducted amounts even through the court. The fact is that judges in such cases are on the side of the employees.
Now about writs of execution. If the employee in respect of whom such a document was received quits, simply send the writ of execution back to the bailiffs. At the same time, attach to it covering letter in any form, in which indicate how much you withheld from the employee.
Withhold the amount of material damage from the employee’s income in this order.
First, calculate the amount of losses, which includes:
Amount of material damage;
Expenses for the acquisition or restoration of property (for example, repairs);
Expenses for compensation for damage that the employee caused to other citizens or organizations (for example, damage from an accident in the part not covered by insurance compensation).
The composition of the losses that the employee who caused material damage to the organization is obliged to compensate is indicated in article 238 Labor Code RF.
Situation: who will compensate for the damage in an accident, the culprit of which is an employee of the organization?
Damage in an accident that an employee caused to third parties (in excess of compensation under OSAGO), reimburse at the expense of the organization (Article 1068 of the Civil Code of the Russian Federation). At the same time, the employee who caused the damage is obliged to compensate such expenses in full (clause 6, part 1, article 243 of the Labor Code of the Russian Federation).
The employee must reimburse:
The amount that the organization transferred to the injured party in excess of the reimbursement for OSAGO;
The cost of repairing the organization's car (if the organization did not enter into a voluntary property insurance agreement or the insurance did not fully cover the costs of repairs).
However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused by him (Article 240 of the Labor Code of the Russian Federation).
An example of calculating material damage caused by an employee in an accident. The employee compensates for the damage caused in full
Driver of the organization Yu.I. Kolesov became the culprit of the accident.
The damage caused amounted to 130,000 rubles. The insurance payment to the injured party under compulsory motor liability insurance amounted to 120,000 rubles. Repairing your own car cost the organization 35,000 rubles. The organization did not provide voluntary property insurance.
The amount of material damage that the employee is obliged to compensate to the organization is:
130,000 rub. - 120,000 rub. + 35,000 rub. = 45,000 rub.
Creation of a special commission
To confirm the amount of material damage in an organization, you can create a special commission (Article 247 of the Labor Code of the Russian Federation). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing facts of theft or abuse, as well as damage to valuables.
Indicate the identified shortage (cost of losses) in the matching statement.
Prepare matching statements:
Or according to the forms approved by paragraph 1.2 of the Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88 (forms No. INV-18 or No. INV-19);
Or according to forms developed by the organization independently and approved by the head of the organization.
If the amount of material damage can be established on the basis of documents received from counterparties, a commission need not be created. For example, in the event of an accident caused by an employee, the amount of material damage can be determined using documents received from insurance and repair companies.
Damage assessment
Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.). In this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). When determining damage, do not take into account actual losses in within the limits of natural loss . This procedure is established by Article 246 of the Labor Code of the Russian Federation.
Written explanations from the employee
After determining the amount of damage, obtain written explanations from the employee about the reasons why it arose. If the employee refuses to do this, then draw up a report. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.
Retention Order
To recover the amount of damage from the guilty employee, the head of the organization must issue a withholding order. The order must be issued no later than a month after the commission establishes the amount of damage.
Calculation of the amount of damage
Based on the order, deduct the cost of damage from the employee’s income, not exceeding his average monthly salary. Taking into account this rule, it is necessary to recover damages both in cases where the employee bears limited financial liability, and in cases where financial liability arises for the full amount of damage.
An amount of damage exceeding the average monthly salary can be recovered from an employee only through the court (if he bears full financial responsibility). At the same time, the employee can voluntarily reimburse the amount of damage. In this case, by agreement of the parties, compensation for damage by installments is allowed.
This procedure is established by Article 248 of the Labor Code of the Russian Federation.
Situation: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income?
The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure has been established for its calculation based on the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it. The different names that are used to determine the amount of payments cannot serve as a basis for using any other procedure.
The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). However, the specific procedure for calculating earnings for such cases has not been determined. This means that general rules need to be used. Namely, you need to calculate average earnings based on the salary actually accrued to the employee and the time actually worked by him for the 12 previous calendar months. In this case, the months preceding the month in which the employee caused the damage. The total salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days or hours on the employee’s schedule in the month in which he caused the damage. Yes, in this case the average earnings will depend on the month of calculation. However, there is no reason to simply divide your annual earnings by 12. This follows from the provisions of Article 139 of the Labor Code of the Russian Federation, paragraphs 4, 9 and 13 of the regulations approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922).
You can deduct from an employee’s monthly salary no more than 20 percent . Therefore, it will most likely be necessary to recover the amount of material damage in the amount of the average salary within several months.
An example of calculating material damage recovered from an employee. An agreement on full financial liability has not been concluded with the employee.
In August 2015, due to the fault of employee A.S. Kondratiev printer failed. The employee has limited financial liability.
The amount of material damage is estimated at 12,000 rubles.
During the period from August 2014 to July 2015, Kondratyev worked 246 days. During this period, he was credited with 415,245.58 rubles.
There are 21 working days in August 2015.
Kondratiev’s average salary for the month in which the material damage occurred (August 2015) is:
RUB 415,245.58 : 246 days × 21 days = 35,447.79 rub.
Since the average monthly salary is more than the amount of damage, by order of the manager, 12,000 rubles are withheld from Kondratyev. Moreover, from each of his salaries - no more than 20 percent.
An example of calculating material damage recovered from an employee. An agreement on full financial liability has been concluded with the employee
In September 2015, the organization discovered a shortage of money in the cash register in the amount of 52,000 rubles. With cashier A.V. Dezhneva concluded an agreement on full liability. She admitted her guilt.
For the period from September 2014 to August 2015, Dezhneva worked 246 days. During this period, 402,345.76 rubles were accrued to her.
In September 2015, 22 working days.
Dezhneva’s average salary for the month in which the material damage occurred (September 2015) is:
RUB 402,345.76 : 246 days × 22 days = 35,982.14 rub.
Since the average salary is less than the amount of damage, by order of the manager, Dezhneva is withheld 10,000 rubles. Moreover, from each of her salaries - no more than 20 percent.
For five months, the accountant withheld 2,000 rubles from Dezhneva's salary. Dezhneva refused to reimburse the rest of the damage and quit. The organization went to court to recover the funds.
An example of calculating an employee’s salary, taking into account deductions within his average earnings
On January 13, 2015, due to the fault of employee A.S. Kondratiev printer failed. An agreement on full financial responsibility has not been concluded with the employee.
The amount of material damage is estimated at 10,000 rubles.
During the period from January to December 2014, Kondratyev worked 247 days. During this period, he was credited with 400,000 rubles.
In January 2015, 15 working days.
Kondratiev’s average salary for the month in which the material damage occurred (January 2015) is:
400,000 rub. : 247 days × 15 days = 24,291.50 rub.
Since the amount of material damage does not exceed Kondratiev’s average salary, the entire 10,000 rubles can be withheld from his income.
For January 2015, Kondratyev received a salary in the amount of 29,000 rubles. Kondratiev has no children.
The amount of personal income tax for January 2015 is:
29,000 rub. × 13% = 3770 rub.
The employee's income after tax is:
29,000 rub. - 3770 rub. = 25,230 rub.
The maximum amount of deductions from an employee's monthly income is:
RUB 25,230 × 20% = 5046 rub.
The amount of damage caused by the employee is more than this amount. However, in January, the accountant withheld only 5,046 rubles from Kondratiev's salary. The remaining 4954 rubles. (10,000 rubles - 5,046 rubles) the organization will deduct from the employee’s salary in the following months.
Deductions from compensation payments
Situation: is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from daily allowances?
Answer: yes, you can. But only if the employee has written a statement of consent to the retention.
At the initiative of the organization, it is impossible to deduct the amount of material damage from such payments. This conclusion can be made on the basis of Article 137 of the Labor Code of the Russian Federation. It says that deductions at the initiative of the organization should be made from salaries. Compensation payments(daily allowances, compensation for the use of personal property), guaranteed by the Labor Code of the Russian Federation (Articles 168 and 188 of the Labor Code of the Russian Federation), do not apply to wages (Part 1 of Article 129 of the Labor Code of the Russian Federation). At the same time, in labor legislation There are no restrictions on deductions that the organization makes not on its own initiative, but at the request of an employee. Therefore, if such a statement is made, the amount of material damage can be withheld from any payments.
If the employee does not agree to retention, act as such. Invite him to voluntarily compensate for the amount of material damage exceeding his average monthly earnings. He can:
Deposit the required amount into the cash register;
With the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property);
Compensate for damage by installments.
This procedure is provided for in Article 248 of the Labor Code of the Russian Federation.
If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss. You will also have to go to court if the withholding order was issued later than a month after determining the amount of damage (Article 248 of the Labor Code of the Russian Federation).
At the same time, the organization has the right to fully or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).
An example of an organization refusing to collect material damage from an employee’s salary
In January, the organization discovered a shortage of money in the cash register in the amount of 52,000 rubles.
With cashier A.V. Dezhneva concluded an agreement on full liability.
The employee pleaded guilty.
Dezhneva's average salary in January was 10,000 rubles. This is less than the amount of damage (52,000 rubles). Therefore, by order of the head of the organization, only 10,000 rubles are withheld from the employee. The remaining amount of 42,000 rubles. (52,000 rubles - 10,000 rubles) Dezhneva refused to pay.
To recover this amount, the organization must go to court. However, the organization did not do this.
Deadline for going to court
It happens that the amount of damage exceeds the employee’s average earnings. The employer cannot deduct more from him. Then the only correct solution would be to go to court. The same applies to the situation when an employee quits without compensating for all the employer’s losses, as well as when he refuses to compensate for damages voluntarily.
At the same time, it is very important to comply with the deadline set for employers to go to court. Namely one year. After all, if you miss it, you won’t be able to compensate for the damage at all. This procedure is provided for in Part 2 of Article 392 of the Labor Code of the Russian Federation.
In any case, the court will accept the statement of claim even after the deadline has expired. However, the refund will be denied. But if you present to the court valid reasons for missing the deadline, then it can be reinstated (Part 3 of Article 392 of the Labor Code of the Russian Federation).
Good reasons mean exceptional circumstances beyond the control of the employer that prevented the application statement of claim. For example, a natural disaster or other force majeure situation that cannot be influenced (resolution of the Plenum Supreme Court RF dated November 16, 2006 No. 52).
How do you count the year for filing a claim? Count it from the date the damage was discovered. That is, from the date of completion of the inventory, during which the amount of damage received was identified or recorded. In this case, consider the term itself to end on the corresponding date of the last year of the term. Moreover, if the last day of the deadline falls on a non-working day, then it is transferred to the next working day. This is exactly the procedure provided for calculating deadlines in parts 3 and 4 of Article 14 of the Labor Code of the Russian Federation.
In practice, a compensation agreement with an installment plan is often signed with the employee. But the guilty do not comply with it. In such circumstances, the period for the employer to go to court is counted from the date when the person violated the terms of the installment plan. This is, in particular, indicated in the ruling of the Supreme Court of the Russian Federation dated July 30, 2010 No. 48-B10-5.
Waiver of retention of damages
The employer has the right to refuse to recover damages from the employee. Refusal to recover may be complete or partial, taking into account the specific circumstances in which the damage was caused. This right is granted by Article 240 of the Labor Code of the Russian Federation.
Refusal to recover damages is permissible regardless of the following factors:
The type of liability the employee bears (limited or full financial liability);
Form of ownership of the organization.
This is stated in paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52.
Exempt the employee from compensation for material damage by order.
The Labor Code of the Russian Federation provides for mandatory material compensation for damage caused by an employee to the employer.
The procedure for its compensation directly depends on the type of legal relationship that has arisen between the employee and the employer.
How is the amount of damage caused determined?
The employer can determine it in general and in a special manner, guided by Art. 246 Labor Code of the Russian Federation.
In general order
Compensation is calculated:
- taking into account actual losses at market value on the day of damage;
- taking into account actual wear and tear based on accounting records. This option applies if the market value material assets below purchase.
With help general order the employer can deduct no more than one month's salary from the employee's salary as a whole
If the amount of damage exceeds one salary, the remaining part of the compensation is repaid by the enterprise, including through insurance premiums, if the damaged or lost property was insured in a timely manner.
special order
This option applies if:
- the damage was caused by shortage or theft;
- the actual amount of damage is higher than the face value of material assets.
Note!
The Labor Code of the Russian Federation allows the employer to deduct no more than 20% from the employee's salary. If the damage was caused as a result of criminal acts, the amount of deductions cannot exceed 70%.
Depending on what financial responsibility was assigned to the employee, he will be required to compensate for the damage caused either in the amount of his one salary or in full.
Based on the general rule, every employee in the event of material damage to the employer’s property bears limited liability within their average monthly salary.
The employee to whom such an obligation was assigned by law and a written contract will have to compensate the damage in full.
Note!
The contract can be concluded individually or for the entire team. It can be permanent or one-time (based on a power of attorney).
Not all employees can be held to full financial liability, but only those specified in the Labor Code of the Russian Federation, as well as in some other federal laws. For example, the person running the company, regardless of its form of ownership, will bear full financial responsibility in the event of damage to the enterprise.
Those employees who caused harm intentionally, while intoxicated or after taking drugs will also be subject to full financial liability.
An agreement on limited or full financial liability is concluded only after the employee has reached 18 years of age.
The procedure for an employer to recover compensation for damage caused
As soon as the employer has discovered the fact that material damage has been caused to his property, he can begin the procedure for recovering from the employee Money. If the amount is small, or the guilty person had previously good reputation, the employer has the right to fully or partially waive his claims.
Any decision to impose or refuse to attract sanctions must be formalized in the form of a written order
The amount of damage can be determined after an inventory, guided by the relevant legislation. After this, the employer must issue his written order, on the basis of which the money will be withheld later.
Note!
The order must be issued no later than one month from the moment when the fact of damage or loss of material assets was discovered and reflected in the inventory report.
Withhold an amount not exceeding the average monthly salary that the employee received over the last 12 months.
It is impossible to calculate money to repay the material damage caused from the funds that were accrued to the citizen:
- while on a business trip;
- in connection with transfer to another location;
- as maternity payments or maternity benefits;
- due to depreciation of working tools.
If a team of several workers was found guilty, then the amount of compensation paid by each member of the team will be determined taking into account the type of liability (full or limited) and the degree of guilt.
If the team members agree with the amount of deduction, they pay off the damage voluntarily, otherwise collection will be carried out in court.
Options for compensation for material damage by an employee
If the management of an enterprise has convicted an employee of causing material harm, he has three options: pay voluntarily, deposit money after the relevant order of the employer or after a court decision.
Voluntarily
If the employee agrees to compensate for the damage voluntarily, this desire must be formalized in writing.
The parties must reach an agreement on the list of material assets and agree on the terms of payment
The form and amount of compensation must be determined by the employee and the employer.
Note!
It is not necessary that repayment of damage should be made only in monetary terms. This may be other or equivalent property that was lost or damaged.
Both parties can enter into an installment agreement. If the employee does not comply with the conditions, the employer will be able to demand payment of the debt through the courts.
If the agreement specifies an amount greater than one employee’s average monthly salary, he has the right to refuse to pay the portion of the debt that exceeds this amount.
Out of court
Extrajudicial compensation for damage occurs after the employer issues a corresponding order. Mandatory conditions must be met:
- labor Relations between the employee and the employer must continue throughout the entire period of recovery of damages;
- the amount of compensation cannot be more than the monthly income of the employee;
- after discovery of the fact of loss of material assets or their damage, no more than one month should pass.
Judicial collection
Compensation for damages caused by a court is possible if:
- the amount of damage exceeds the monthly salary of the guilty party;
- more than a month has passed since the discovery of the fact;
- the employer proved the fact of damage to his company, indicating a specific amount and determining the degree of guilt of each employee, in the presence of an agreement on collective liability.
All these circumstances must be reflected in the statement of claim.
Recovery of damages from a dismissed employee
If, after discovery of damage, an employee quits, compensation can only be recovered from him by filing a claim at the location of the enterprise.
If the property was insured, the amount due can be recovered in court as a recourse Insurance Company
Determining the deadline for going to court
The tenant has the right to apply to the judicial authorities within 12 months from the date of discovery of the damage. This date is considered the day when the employer established the presence of missing or damaged property, or the day the inventory was completed.
When the parties sign a written agreement on the payment of compensation and the employee who has already resigned makes the next payment, the first missed day of payment will become the starting date of the deadline. If the limitation period is violated, the employer loses the right to recover money from the employee, regardless of whether he was at fault.
Drawing up a statement of claim
The statement of claim includes:
- name of the judicial authority;
- plaintiff's name and full name the defendant and their location;
- claims for damages;
- the circumstances that constitute the basis for the plaintiff’s claim, taking into account all available evidence of the citizen’s guilt;
- the cost of the claim, taking into account the full amount of the amount recovered;
- information confirming the pre-trial settlement of the situation;
- date and signature of the plaintiff;
- list of required documents.
Summary
It is possible to recover material damage that an employee caused to his employer voluntarily, out of court, and in court. In all cases, the order must be issued in a timely manner.
If you are accused of such misconduct, but you do not agree with the actions of your employer, you have the opportunity to challenge them in court. Experienced lawyers of our company can help you understand this situation.
Article No. 15 Civil Code Russian Federation states that every citizen of Russia or another state, as well as any legal entity, has the right to receive monetary compensation for material damage caused.
The concept of “damage” combines two components:
real loss - loss or partial damage to personal property; lost profit - lack of opportunity to earn income due to the fault of the defendant.
The amount of compensation can be full or partial. This depends on a number of factors.
Thus, partial compensation for losses occurs if the damage was caused by minors or incompetent persons. Another case of partial monetary payment is the presence of an insurance policy in favor of the injured person.
What is the procedure for compensation for material damage?
Compensation for property damage is the obligation of the party whose actions (or inaction) caused a loss to the injured party.
The rules and procedure for paying compensation are established by the legislation of the Russian Federation.
Compensation for the damage caused is possible both by mutual agreement and by filing a claim in court.
There are general rules of jurisdiction:
if the value of the claim is less than 50,000 rubles, then the claim is filed in the magistrate's court; if the value of the claim is more than 50,000 rubles - in the district court.
Procedure before submitting an application on compensation for material damage:
it is necessary to provide evidence of the fact of causing harm; it is necessary to prove the existence of a cause-and-effect relationship between the action (or inaction) of the defendant and the negative consequences.
This procedure is valid for cases where material losses were incurred as a result of the actions of an individual.
If the defendant is a legal entity or entrepreneur, then only proof of the fact of causing damage is sufficient.
The next step is to file a claim., which will become the basis for consideration of the case regarding the assignment of payment of compensation.
The application is sent to a court of general jurisdiction if the victim - individual, and to the arbitration court - when resolving corporate disputes between legal entities or entrepreneurs.
General procedure for compensation of losses
If relations regulated by an agreement have been established between the parties involved in causing property damage, then the payment of damages must occur based on certain clauses of the relevant agreement.
Read here what an employment contract is and what is its main difference from an employment contract.
A special case of contractual relations is the relationship between an employee and an employer. These relations are regulated by the Labor Code.
Compensation for losses by the employee occurs after discovery of the damage caused. The employer must conduct an inspection to determine the circumstances of the employee’s involvement in the fact of causing damage.
Order compensation provides for the possibility of voluntary repayment of losses in a lump sum or in installments.
If the employee refuses to voluntarily pay compensation, the employer has the right to pursue recovery through judicial proceedings. The limitation period in this case is 1 year from the date of discovery of the damage.
It happens that material damage is caused to an employee by the employer. In this case, the employer is fully responsible for compensating for material damage to the employee. If the deadline for payment of monetary rewards (salaries, bonuses, etc.) is violated, the amount is calculated taking into account interest for the period of delay.
Compensation for claims within the framework of non-contractual relations is regulated either by agreement of the parties or in court.
A court decision can be made only on the basis of a filed claim by the victim. The claim is sent to the court by mail or delivered independently to the court reception.
The period for compensation for material damage is established by the legislation of the Russian Federation and is 3 years from the occurrence of the event as a result of which the harm occurred.
How to write an application correctly?
When writing a statement of claim, it is worth remembering that all claims related to compensation for loss must be justified and confirmed.
The application must be made in writing and meet the requirements specified in Article 131 of the Civil Code of the Russian Federation.
The application must include the following information:
official name of the court to which the document is submitted; last name, first name, patronymic of the plaintiff (in full), residential address. If the applicant carries out all actions through confidant, then all the details of the intermediary must be indicated; all personal information about the defendant, if this is an individual. Location of the organization, if the claims are presented to a legal entity; description of the nature of the damage caused, the exact date, place and circumstances that led to the material damage; evidence of the circumstances on the basis of which, in the plaintiff’s opinion, the loss was caused; amount of compensation for material damage; description of actions the applicant on attempts to resolve the conflict out of court; a list of documents attached to the application; handwritten signature of the plaintiff or his authorized representative. Article 132 of the Civil Code of the Russian Federation provides for the following documents that must be attached to the claim: copies of the statement of claim in an amount equal to the number of defendants; a receipt confirming payment of the state duty; documents evidencing the loss; calculations for compensation for material damage (original and copies according to the number of defendants); power of attorney to represent the interests of the plaintiff in the event that the plaintiff does not represent your claim in person.
The procedure for calculating and determining the amount of material losses
The most common types of damage caused:
flooding of living space; road accident; fire in an apartment (house); poor quality of work (services); lack of alimony payments and urgent payments.
Calculation of damage caused depends depending on the specific circumstances and claims put forward by the plaintiff:
the cost of a claim to recover the amount of money borrowed is this amount plus additional charges (interest, penalties, etc.), if this was specified in the loan agreement; when assessing damage caused to real estate, a certificate of inventory value is required object. Compensation is calculated based on this amount; when determining the price of the claim for payments (alimony, urgent payments, etc.), material damage is calculated individually. When collecting alimony, damages are calculated for 1 year. For urgent payments - for the totality of expected payments, but not more than for 3 years.
If the plaintiff is mistaken in the amount of money presented for payment, then the judge has the right to determine this amount independently.
Refund terms
The statute of limitations for compensation for material losses is 3 years from the moment of the occurrence of the event that caused the damage.
This rule does not apply when harm is caused to human life and health.
In the event of pre-trial settlement of material conflicts between an employee and an employer, the timing of payment of compensation is agreed upon by mutual consent of both parties.
This could be a one-time payment or an installment plan. In any case, an additional agreement is drawn up, which specifies the date for repayment of the debt.
If there is a judicial resolution of the conflict regarding compensation for damage caused, then the payment terms will be determined in court decision. Monitoring its implementation is carried out by bailiffs.
Features of compensation for damage caused by crime
The main feature is the fact that there is no need to separate a claim for compensation for material damage caused by a crime into a separate case. It can be filed as part of a criminal trial.
The statute of limitations begins not from the moment the crime was committed, but from the moment the damage was discovered by the victims, and lasts 3 years.
The person guilty of committing a crime and causing damage pays compensation from his earnings for the time he is in prison or colony.
The amount to be paid, but not yet paid, is indexed depending on changes in the cost of living in the country.
Increasing the legal literacy of the population in the general context, and in matters of collecting compensation for material damage, in particular, leads to a civilized solution to any conflicts that arise between individuals and legal entities.
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