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The determination of the amount of damage is determined by the employer in two ways - in general and special okay. Yes, according to Art. 246 of the Labor Code of the Russian Federation, the amount of compensation must correspond to current losses.

Important! Cash payments are made by the delinquent employee, regardless of whether he is brought to administrative, disciplinary, criminal liability for those actions (or their absence) that caused damage to the employer.

Features of the recovery procedure

After the employer has recorded the fact of the damage caused, he can partially or completely refuse material compensation. Such a measure is appropriate in two cases: if the losses are insignificant or if the offending employee has a positive reputation in professional circles (the property was "damaged" by negligence).

Important! The decision of the employer to collect compensation in the prescribed amount must be documented (in the form of an order). As soon as the amount of damage is established, the employer issues an order to withhold funds from the salary of the subordinate. This document must be issued no later than 30 days from the date of ascertaining the fact of damage and reflecting it in the inventory act.

The amount to be recovered from the employee should not exceed his monthly salary (set on the basis of the actual salary for 12 months).

The deduction of funds to cover material damage is not carried out from:

• travel;
• Payments that cover the material costs of transferring an employee to another locality;
• Funds for inventory depreciation;
• maternity;
• Benefits for pregnancy and childbirth.

If material damage to the employer was caused by a group of persons, then the amount of compensation paid by each of them is determined by the degree of fault and the type of liability (it can be full or limited).

Important! If the employer failed to voluntarily agree on the amount of payments with the team, the amount of compensation is established in court.

In order to accurately calculate the amount of compensation required, it is necessary to determine the market price of the damaged property on the day it was discovered. It is noteworthy that this figure should not be lower than that indicated in the financial statements, minus the degree of depreciation of material assets.

The determination of the amount of compensation for damage to the employer in the general procedure is carried out in 2 ways:

• Based on actual losses, taking into account the market value of material goods for the current day;
• Based on the data of financial statements, focusing on the degree of depreciation of the property.

The latter calculation option is advisable to use when the market price of the goods is lower than its purchase price.

Important! The general procedure for recovery for material damage caused allows the employer to withhold an amount that does not exceed the average monthly salary of the guilty employee. The rest of the compensation must be covered by the company's funds or insurance premiums (if the damaged property was insured).

Determining the amount of compensation in a special order is carried out in the following situations:

• material damage was caused to the employer as a result of deliberate damage to property, as a result of theft or shortage;
• the actual amount of damage exceeds the nominal value of the “affected” goods.

In accordance with the labor legislation of the Russian Federation, the employer can deduct no more than 20% from the employee's salary, and if the damage was caused as a result of criminal activity - up to 70%.

Redress mechanisms

The employee can voluntarily compensate the employer for the damage caused. In this case, a document (agreement) is drawn up, which strictly regulates the specific conditions of payments.

The amount and form of compensation for damage are determined by both parties - it can be money or other property that is equivalent to lost (damaged).

Compensation can be paid by the employee gradually (an installment agreement is concluded), the guilty person undertakes to fully cover the damage by a certain time.

Important! If the employee has not repaid the debt within the established time limits, the employer may sue the unpaid funds from him.

It should be remembered that with a voluntary agreement, an employee can cover compensation, the amount of which does not exceed his average monthly salary. When a large amount is fixed in the agreement, the employee has the right to refuse to pay the remaining part of the debt.

Compensation for damage is carried out not only voluntarily, but also out of court - the employer withholds the established amount from the salary of the offending employee.

Extrajudicial recovery of compensation is carried out subject to several important conditions:

• the total amount of damage coverage does not exceed the monthly earnings of the offending person;
• no more than 30 days have passed since the damage (loss) of the property;
• the employment relationship between both parties continues throughout the entire compensation period.

Damages are compensated by the court in the following situations:

• the amount of money required by the employer exceeds the monthly salary of the offending employee;
• more than a month has passed since the discovery of the fact of damage (loss) of property.

When drawing up (submitting) a statement of claim, the victim must prove the fact of damage to property, indicate the amount of compensation and determine the degree of guilt of each employee (if we are talking about collective labor responsibility).

Rules for filing a claim

The document is drawn up in free form manually or using technical means. The form must include:

• Name of the court;
• Address, full name or name (in the case when the claim is filed on behalf of a legal entity) of the plaintiff, his actual address, signature;
• Full name, address of the respondent;
• The subject of the claim (the fact of the damage caused, evidence of the defendant's guilt);
• The amount of compensation required (price of the claim);
• Information about pre-trial attempts to resolve the situation (if any).

In this case, the only way to claim compensation is through the courts. In accordance with Article 392 of the Labor Code of the Russian Federation, the employer has the legal right to apply to the court within 12 months from the date of causing material damage. The date of its discovery is the one on which the inventory was carried out, or the one when the victim discovered the damage caused.

If the employer and his former employee previously entered into a voluntary agreement on the payment of compensation, but at some point the guilty person did not make the next payment, and, moreover, subsequently quit, it is the date of the first missed payment that will be the starting point of the one-year period allotted for filing a claim .

How to determine the amount of damage caused by a dismissed employee: the amount of payments already made is deducted from the actual amount of compensation.

Limit payout rates

The legislation provides for partial or full liability of the employee for damage caused to the employer. The latter is relevant only when there is a clause in the employment contract, in accordance with which the employee committed illegal actions that resulted in material damage. According to Art. 243 of the Labor Code of the Russian Federation, such situations include:

• deliberate infliction of harm;
• the presence of a shortage of valuables that were entrusted to the employee in accordance with the agreement;
• criminal actions of the employee (established in court);
• the damage was the result of an act of a guilty person who was in a state of intoxication;
• cases of disclosure of confidential information relating to the economic activity of the enterprise (including that which is protected at the legislative level);
• losses caused due to an administrative violation (the fact of such a violation is recorded by the relevant state authority);
• The damage was done during non-business hours.

If the court decides that causing damage is actually a criminal act, the perpetrator bears not only financial, but also criminal liability for the deed.

Many "victims" of negligence or deliberate sabotage by employees without their knowledge withhold amounts in excess of their monthly income.

Some employers issue an order to withhold funds to pay off compensation later than a month after the discovery of the fact of damage. In both the first and second situations, it is possible to demand payment only in court.

Other errors related to material penalties against damages:

• The actual amount of damage caused by the employee is not established;
• Violation of the rules for conducting an inventory;
• There is no written explanation from the employee regarding the situation that has arisen.

Upon the fact of damage, the employer must demand written explanations from the guilty person, if the offending employee refuses to testify, this must also be documented.

When an employer cannot claim compensation:

• Extreme necessity, defense, force majeure, resulting in damage to property;
• Disdainful attitude to the exploitation and storage of material goods by the employer himself;
• The absence of an agreement on the material liability of the offending employee (or drawing up a paper without convincing reasons).

If an agreement on full liability was not initially drawn up with an employee who deals with valuables, then he will compensate for the damage inflicted in a general manner - in an amount not exceeding his monthly earnings.

In addition, the employer does not have the legal right to enter into such contracts with persons employed in positions not listed in the Decree of the Ministry of Labor No. 85.

According to Article 239 of the Labor Code of the Russian Federation, an employee may refuse to compensate for material damage in the event that a specially created commission has discovered:

• The existence of a natural economic risk in relation to a particular enterprise;
• The presence of force majeure circumstances;
• The absence of such working conditions that would allow a materially responsible person to safely operate the entrusted values ​​and ensure their safety;
• Signs of self-defense or extreme necessity, resulting in damage to property.

It is noteworthy that in case of intentional harm, shortage, loss of property or the fact of theft, the enterprise establishes special rules for calculating losses. For example, in the event of the loss of psychotropic or narcotic drugs, the offending employee is obliged to compensate for losses of a direct nature in 100 times their original value.

Important! The full liability of the employee for the fact of causing damage can be established exclusively in court (Article 243 of the Labor Code of the Russian Federation).

So, as a result of the damage caused by the guilty employee, the employer may demand payment of compensation of the established amount. Repayment of payments is carried out in a voluntary (by agreement), extrajudicial, judicial procedure. The total amount that the employee who caused the damage undertakes to repay must not exceed the amount of his monthly income (it can be paid, by agreement with the employer, in installments).

If there are disputes related to the material damage caused, a special commission may be invited to the enterprise (conducts an investigation, sets the amount of compensation).

To questions No. 808042., No. 809649 Liability. Hello, I cannot understand from your answers. If the fault of the employee is proven by the commission that he caused damage of 500 thousand, it turns out that all the same, the employer can, by his order, recover only once the amount of 25,000 rubles - the average salary of the employee, and what about the rest of the amount. How to issue a recovery of the full amount of damage, whether the consent of the employee must be issued or the employer collects only the average earnings in the amount of 25,000 rubles, once, and the rest through the court. or the employee pays the employer 25,000 rubles every month. until full repayment. Works for free. Thank you.

Answer

The current Russian legislation provides for mandatory compensation for damage caused to the employer.

The procedure for compensation for damage depends on the type of legal relationship between them.

Let's take a closer look.

The employer can determine the amount of damage caused in two ways: in general and in a special manner.

The determination of damage in the first case occurs on the basis of Art. 246 of the Labor Code of the Russian Federation: the amount of damage is determined by current losses. To calculate a specific amount of compensation, it is necessary to determine the market price of the damaged property on the day it was discovered.

At the same time, it cannot be lower than its purchase price, indicated in the financial statements, minus the degree of depreciation.

Thus, determining the amount of compensation in the general order implies 2 options:

1. based on actual losses, taking into account the market price for the current day;
2. on the basis of financial statements, taking into account depreciation.

The latter option is used if the market price of the product is below it. purchase price.

Having determined the amount of compensation, the employer issues an order to withhold funds. This document must be drawn up no later than one month after the discovery of the fact of property damage and its reflection in the inventory act.

The amount recovered from the employee cannot exceed his monthly amount, determined on the basis of his actual salary for 12 months.

Withholding funds is not possible from the following payments:

• payments related to the transfer of an employee to another location;
• for depreciation of working tools;
• maternity benefits, .

If several people are found guilty of causing damage, i.e. the work team, i.e. we are talking about (for example, a team), the amount of compensation for each of them is determined individually, taking into account the degree of his guilt and the type of liability (full or limited).

The amount of deductions in this case is determined by a voluntary agreement between the team and the employer or by the court, if the damage is recovered in court.

Options for compensation for material damage by an employee

Voluntary

Voluntary compensation for damage by employees is made in writing. an agreement specifying specific payment terms. The form and amount of compensation are determined by the employee and the employer: it can be cash or other property equivalent to damaged or lost.

In this case, the parties may conclude installment payment agreement, in which the employee undertakes to pay the entire amount by a certain time. If the employee fails to comply with this agreement, the employer has the right to demand payment of the remaining part of the debt through the court.

At the same time, it must be remembered that a voluntary agreement implies compensation, the amount of which does not exceed the monthly salary of the employee. That is, if the agreement specifies an amount in excess of the employee, he may refuse to pay the remainder of the debt.

extrajudicial

Out-of-court damages means withholding compensation from the salary of the guilty employee at the direction of the employer.

It is possible under several conditions:

1. the amount of compensation does not exceed the monthly salary of the employee;
2. no more than a month has passed since the discovery of the fact of damage or loss of property;
3. the employment relationship between the parties continues during the entire period of collection of funds.

Judicial

Judicial compensation for the damage caused is possible in the following cases:

• compensation exceeds the monthly earnings of the perpetrator;
• More than a month has passed since the discovery of the damage.

When filing a claim, the employer must prove the fact of causing damage to him and its amount, as well as the degree of guilt of each employee with collective responsibility.

Recovery of damages from a dismissed employee

To recover compensation for damages from a dismissed employee is possible only through the courts. The algorithm of actions in this case looks like this:

Determining the deadline for filing a lawsuit

Art. 392 of the Labor Code of the Russian Federation secures the employer the right to apply to the court within a year from the date of discovery of the damage. The date of its discovery is the day the inventory was completed or another day on which the employer discovered the presence of damaged or missing property.

If a voluntary agreement on the payment of compensation was concluded between the employer and the employee, but the employee did not make the next payment and subsequently quit, then the day the year period starts counting will be the day of the first missed payment.

Determining the amount of damage caused

In the case of recovery of compensation from a dismissed employee, the amount of recovery is determined by subtracting from the actual amount of damage the payments already made by the former employee.

Drafting a claim

The application is made in writing or using technical means in a free form. The form must contain:

1. The name of the court, the name and address of the plaintiff (in accordance with the statutory documents of the organization), the name and address of the defendant, the personal signature of the plaintiff.
2. The subject of the claim, i.e. the claim for compensation for the damage caused.
3. The circumstances on which the plaintiff's claims are based: legal evidence of the actual fact of material damage, as well as the defendant's guilt.
4. Price of the claim: the amount of compensation claimed.
5. Information about an attempt to pre-trial settlement of the situation, if required by law.

The main mistakes of employers

1. Withholding from the salary of an employee compensation in excess of his monthly salary without his consent. For example, if the amount of damage is 15 thousand rubles, and the salary of the guilty employee - 10 thousand, then the total amount of compensation should not exceed 10 thousand rubles. The employer can receive the remaining amount of 5 thousand only after the relevant court decision!
2. Issuance of an order to withhold funds later than one month from the date of discovery of the damage. The countdown of the specified month begins from the moment the amount of damage caused is determined. If more than 30 days have passed since that date, you can claim compensation only in court!
3. The amount of actual damage has not been established.
4. Inventory rules violated.
5. Lack of a written explanation from the employee. In order to recover compensation, the employer is obliged to demand a written explanation from the employee on the fact of damage. The request must be made in such a way that the employer has documentary evidence of this. Refusal to give an explanation is formalized by the relevant act.
6. Requiring compensation from an employee in the presence of circumstances excluding any of his liability. These include: force majeure, emergency and defense, as well as neglect by the employer of the rules and regulations for the storage of property.
7. Absence or vice versa, its conclusion in the absence of grounds for it. If an employee working with material assets has not concluded a full liability agreement, in case of damage, he will be liable within the limits of his monthly salary. Also, the employer does not have the right to conclude such an agreement with employees employed in positions not listed in the list of positions (Decree of the Ministry of Labor No. 85). Such a document will be declared invalid in court.

Arbitrage practice

Example 1

A state-owned enterprise filed a lawsuit against the former driver Klipikov with a demand for compensation for material damage. According to the statement, the defendant Klipikov, while performing his job duties, hit the car of citizen Ivanov while driving an official car. The court found Klipikov guilty of this accident and ordered him to pay Ivanov 80,000 material damages.

The company transferred the required amount to Ivanov's account, after which it concluded an agreement with Klipikov to reimburse him for this amount within six months. Two months later, the driver was voluntarily fired and the payments stopped.

The plaintiff's claim was denied. According to the court, the defendant at the time of the accident, i.e. causing damage, was in the line of duty. For the two months that Klipikov worked in the organization, they were paid 20,000 rubles, while his average salary was 15,000.

Grounds for refusal of the claim: since the position of the driver is not included in the list of positions that imply full liability, the defendant may be charged compensation not exceeding his monthly earnings. This amount has already been paid by the respondent.

Example 2

The organization went to court demanding to recover from the former employee compensation for material damage. With the defendant Ivanov entered into an agreement on full liability. Material values ​​were entrusted to the defendant on the basis of an inventory act, secured by his personal signature. During the next inventory, a shortage of valuables entrusted to Ivanov was revealed. The defendant provided a written explanation on this fact, indicating that there were no material assets indicated in the previous inventory act, and accordingly, no damage was caused to the organization.

20% was withheld from Ivanov's salary, after which he was fired. Compensation was also collected from the final calculation of the employee (20%). The plaintiff seeks to recover from the defendant the remaining amount of the damage caused by him.

The court decided to satisfy this requirement and recover from the defendant the remaining amount of compensation.

The basis is the conclusion between the parties of an agreement on full liability, in which the defendant is liable for his obligations in full, and dismissal is not a reason for refusing compensation for damage. Since Ivanov agreed with the inventory act, it is not possible to dispute the existence of material assets.

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As of: 04/02/2007
Magazine: Directory of personnel officer
Year: 2007
Author: Bondarenko Elvira Nikolaevna
Topic: Limited employee liability, Full liability
Category: HR practice

As you know, one of the goals of labor legislation is to protect the rights and interests of employees and employers (part 1, article 1 of the Labor Code of the Russian Federation). The fulfillment by the employee of his obligations under the employment contract guarantees the protection of the rights of the employer, including the right of ownership. An employee who caused damage to the property of the employer (including the property of third parties held by the employer, if he is responsible for the safety of this property) or the property of other employees is obliged to compensate for it. This obligation is mentioned in Art. 21 of the Labor Code of the Russian Federation among the main ones and follows from Art. 8 of the Constitution of the Russian Federation, which provides for equal protection of all forms of ownership. Art. 232-250 of the Labor Code of the Russian Federation.

Establishing such a seemingly rigid obligation of the employee to the employer, especially considering their property inequality, the legislator, nevertheless, considered it possible to ease the position of the employee in a certain sense, despite the offense he had committed. So, as a general rule, the employee is obliged to compensate the employer only for direct actual damage. Lost income (lost profit) is not recovered from him (Article 238 of the Labor Code of the Russian Federation). There are also a number of employee-sparing regulations.

The main type of material liability of an employee is limited, within the limits of the average monthly earnings (Article 241 of the Labor Code of the Russian Federation); in Art. 239 of the Labor Code of the Russian Federation establishes circumstances excluding his liability; the employer, with some exceptions, has the right to refuse to recover damages from the employee (Article 240 of the Labor Code of the Russian Federation).

If the employee still bears full liability, then only in cases specified by law and again, as a rule, for direct actual damage. There are other circumstances in the legislation, the consideration of which should mitigate the obligation of the employee to compensate for the damage caused to him.

Nevertheless, property damage caused to the employer, however, must be compensated. First of all, the employer must determine the amount of damage caused by the employee and establish the reasons for its occurrence (Articles 246 and 247 of the Labor Code of the Russian Federation) * This is his obligation, non-compliance with which excludes the possibility of compensation for damage.

Conducting an audit is a necessary condition for the material liability of an employee. In addition, the employer is obliged to demand a written explanation from the employee. This is done in order to find out the cause of the damage and thereby determine the fault of the employee. If the employee evades giving an explanation, an appropriate act is drawn up.

compensation options

When the amount and cause of damage is clarified, it is necessary to determine how it will be compensated.

There are several procedures for compensation for damage by an employee:
- when the fact of causing damage is recognized by him and he is ready to compensate it voluntarily;
- when the employee does not agree with the fact of causing damage or its size and applies to the labor dispute resolution body - a judicial (controversial) procedure;
- when the damage is recovered by the employer from the employee, regardless of the consent of the latter in an indisputable manner. In this case, the employee is also not deprived of the right to appeal against the decision of the employer, but this is already post factum.

Voluntary compensation by the employee for damage- full or partial - is possible only with the consent of the employer. The employee either, with the consent of the employer, corrects the damaged property, or transfers an equivalent one, or deposits an adequate amount of money into the employer's cash desk. Article 248 of the Labor Code of the Russian Federation allows compensation for damages with installment payment, but only by agreement with the employer. In this case, the employee undertakes in writing to pay the agreed sums of money at regular intervals, repaying the debt by the date stipulated by the parties. If the employee does not fulfill his obligation or quits, the debt is collected in court.

The procedure for recovering damages from the guilty employee at the request of the employer provided for by Art. 248 of the Labor Code of the Russian Federation. When deducting certain amounts from the employee's salary, the employer must comply with certain conditions.

First of all, damages not exceeding the average earnings of the employee can be recovered in this manner. That is, if the employee bears limited liability, this procedure applies, unless, of course, the damage is compensated voluntarily. But even in the case of full liability, if the amount of damage caused is not more than the average earnings, it can be recovered under Art. 248 of the Labor Code of the Russian Federation. Thus, in order to determine the procedure for compensation by an employee for damage What matters is not the type of liability, but the amount of damage caused.

Another condition is the statutory collection periods. The order must be made no later than one month from the date of the final determination by the employer of the amount of damage.

Finally, a retention order is issued for an employee who continues to work for that employer. The fact is that the very fact of causing damage is not the basis for terminating the employment contract at the initiative of the employer; this also requires the decision of the competent authority (see, for example, subparagraph "d", paragraph 6 of article 81 of the Labor Code of the Russian Federation). At the same time, the employee who caused the damage has the right to quit at his own request. The employer then goes to court to recover damages.

In the event that the employer fails to comply with the conditions for the recovery of damages (namely, if the one-month period during which a deduction order can be made is violated, or an amount exceeding the average monthly earnings is recovered), the employee has the right to go to court, moreover, as follows from part 2 Art. 248 of the Labor Code of the Russian Federation, bypassing the commission on labor disputes.

Note!

Average earnings are calculated according to the rules of Art. 139 of the Labor Code of the Russian Federation as amended by Federal Law No. 90-FZ dated June 30, 2006. In the part that does not contradict the Labor Code of the Russian Federation, the Regulations on the peculiarities of the procedure for calculating the average wage are in force, approved. Decree of the Government of the Russian Federation of April 11, 2003 No. 213

Recovery cannot be levied on amounts paid:
1) in compensation for harm caused to health, as well as in compensation for harm to persons who have suffered damage as a result of the death of the breadwinner;
2) persons injured (wounds, injuries, contusions) in the performance of their official duties, and members of their families in the event of death (death) of these persons;
3) in connection with the birth of a child; mothers of many children; single father or mother; for the maintenance of minor children during the search for their parents; pensioners and disabled people of the 1st group for their care; victims for additional food, sanatorium treatment, prosthetics and expenses for caring for them in case of harm to health; for maintenance obligations;
4) for work with harmful working conditions or in extreme situations, as well as for citizens exposed to radiation due to disasters or accidents at nuclear power plants, and in other cases established by the legislation of the Russian Federation;
5) organization in connection with the birth of a child, with the death of relatives, with the registration of marriage, as well as for severance pay paid upon dismissal of an employee (Article 69 of the Federal Law of July 21, 1997 No. production).

Compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability (part 6 of article 248 of the Labor Code of the Russian Federation). Thus, the combination of sanctions is possible.

Note!

It is possible to simultaneously bring the employee to material and disciplinary or (criminal or administrative) liability

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to recover damages from the employee. However, the owner of the property of the organization may restrict this right in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws, other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of the organization. This is also stated in the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 "On the application by the courts of legislation governing the liability of employees for damage caused to the employer."

The Labor Code of the Russian Federation also provides for a general procedure for when it is possible to deduct an employee from an employee’s salary by order of the employer - on what grounds and to what extent (Articles 137 and 138). The establishment of such a procedure is the most important guarantee for the remuneration of an employee (Article 130 of the Labor Code of the Russian Federation) and, in general, the most important guarantee of his labor rights

. indisputable order of deduction from wages

The obligations of the employee, for which deduction from his salary is possible, can be conditionally divided into the following:
1) obligations to the state (for example, clause 4 of article 226 of the Tax Code of the Russian Federation: deduction by a tax agent of the amount of tax on personal income; article 43 of the Criminal Executive Code of the Russian Federation: deduction from the earnings of a person sentenced to corrective labor, amounts established by a court verdict) ;
2) obligations to third parties: compensation for harm caused to the health of another person, compensation for harm to persons who have suffered damage due to the death of a breadwinner, compensation for damage caused by a crime (Article 138 of the Labor Code of the Russian Federation), as well as withholding alimony on the basis of a writ of execution or a notarized agreement on the payment of alimony (Article 109 of the Family Code of the Russian Federation). In these cases, deductions are made in an indisputable manner.

An indisputable procedure is provided for withholding the damage caused, but, as mentioned above, with certain conditions. In the case of reimbursement of an unworked advance payment issued to an employee on account of wages (paragraph 1, part 2, article 137 of the Labor Code of the Russian Federation), no retention periods are established. What is considered the maturity of the debt (advance payment) in this case? After all, it is not supposed to return this advance, so to speak, in kind, but to work it off.

The term in this case is determined by the situation itself: the employee is given an advance on account of his salary, for example, for the current month. A month worked out - it means that the debt is repaid. Therefore, the deadline for the implementation of the deduction must be counted from the end of the month for which the salary will be accrued.

True, it is not very clear how the employer should find out that the employee does not dispute the grounds and amounts of deductions. The ideal situation is when the employee knows that the employer is going to deduct some amounts from his salary, and does not dispute (or dispute) this fact. However, in most cases, the employee learns about the fact and the amount of deduction already when it is made.

Note that the provision of art. 137 of the Labor Code of the Russian Federation is interpreted by some experts as a requirement of the employer to inform the employee without fail that a deduction will be made on such and such a basis and in such and such an amount (that is, in fact, ask for his consent).

Absence in Art. 137 of the Labor Code of the Russian Federation of instructions on the need to obtain the written consent of the employee suggests that the employee is considered not disputing the withholding until he declares this to the employer.

recovery of damages under certain conditions

In the following cases, deductions, although they are made, are subject to a monthly period and provided that the employee does not dispute their basis and size:
1) to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases. If the employee has not reported for the business trip in a timely manner, within three days, the accountable amounts may be withheld from him. However, in case of repayment of the debt by the employee (even with a violation of the deadline), the employer is obliged to reimburse them;
2) to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for considering individual labor disputes recognizes the employee's guilt in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or simple (part 3 article 157 of the Labor Code of the Russian Federation). Under the counting understand the arithmetic error;
3) upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deduction for these days is not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77 or para. 1, 2 or 4 hours 1 tbsp. 81, paras. 1, 2, 5, 6 and 7 st. 83 of the Labor Code of the Russian Federation. The right of the employer to apply in this case to the court does not contain either the Labor Code of the Russian Federation (Article 391), or the Rules on Regular and Additional Leaves (clause 2), approved by the NCT of the USSR on April 30, 1930 No. 169 and valid in the part that does not contradict the Labor Code of the Russian Federation. However, in paragraph 1 of Art. 3 of the Code of Civil Procedure of the Russian Federation states that an interested person has the right to apply to the court for the protection of violated or contested rights, freedoms or legitimate interests. Finally, Art. 8 of the Constitution of the Russian Federation establishes equal protection of all forms of ownership;
4) if wages were overpaid to the employee in connection with his illegal actions established by the court. It does not matter whether the employee is subject to any type of legal liability.

salary deduction limits

Article 138 of the Labor Code of the Russian Federation establishes limits for deductions from wages.

The total amount of all deductions for each payment of wages cannot exceed 20%, and in cases provided for by federal laws, 50% of the wages due to the employee.

Note!

When deducting from wages for several executive documents, the employee must in any case be retained 50% of wages

According to Art. 66 of the Law on Enforcement Proceedings, deductions from wages and other types of income of the debtor are made in a limited amount in the following cases:
1. When executing the debtor's writ of execution, no more than 50% of wages and equivalent payments and extraditions may be withheld until the amounts recovered are fully repaid.
2. When withholding from wages and equivalent payments and issuances under several executive documents, the employee must be kept 50% of wages.
3. Limitations on the amount of deductions from wages and equivalent payments and payments, established by paragraphs. 1 and 2 of this article shall not apply to the recovery of alimony for minor children, compensation for harm caused to health, compensation for harm to persons who have suffered damage as a result of the death of the breadwinner, and compensation for damage caused by a crime. In these cases, the amount of deductions from wages and equivalent payments and payments cannot exceed 70%.
4. The rules established by this article shall also apply to the collection of stipends, pensions, remuneration due to the debtor for the use by the author of his copyright, the right to discover, invention, for which copyright certificates have been issued, as well as for rationalization proposals and industrial designs, for which certificates have been issued. .

Deductions from wages can be for three reasons. The first is the 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 withhold:

• periodic payments (for example, alimony);
• collection of property debts (if the employee does not have property or it is not enough to pay off the debt);
• compensation for health damage.

Most often, the organization of deductions from wages is carried out in relation to alimony. They can be set in a fixed amount. For example, if the salary of an employee is 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 salary in relation to:

• unworked advance payment issued on account of salary;
• unspent and not returned in a timely manner, issued under the report, in connection with the transfer to work in another area, etc.;
• salaries and other amounts overpaid to an employee due to a counting error or when proving his guilt in downtime or failure to comply with labor standards;
• amounts for unworked vacation days upon dismissal of an employee before the end of the working year for which he is entitled to vacation;
• amounts of benefits for temporary disability and for pregnancy and childbirth, 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 from Rostrud dated October 1, 2012 No. 1286-6-1) or illegal actions of the employee himself (say, he hid information that affects the amount of benefits).

Have a question

We used the wrong benefit calculation algorithm. Is this a counting error?

No, such an error cannot be called counting or arithmetic. Therefore, it will not be possible to withhold an overpayment from an employee. Now, if you made a mistake, say, when multiplying the amount of daily earnings by the number of calendar days in a period of disability or vacation, that's another matter. Such a miscalculation would be precisely arithmetical.

Also, from the employee’s earnings, you can withhold compensation for material damage that he caused to the organization. The basis here will be articles 238 and 240 of the Labor Code of the Russian Federation. Well, if the employee himself asks to deduct some amount from his salary, then let him write a statement. Here is his sample:

Separately, I will allocate loans to employees. Here it is more convenient to prescribe in the contract itself that you will withhold a certain part of the salary.

Limits on the amount of deductions

Deductions from salaries, 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 at each payment of income. However, if you simultaneously withhold money from an employee’s income both at the initiative of the administration and under executive documents, then their total amount of deductions should not exceed 50 percent of the salary in hand. 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 their breadwinner or caused by a crime;
• alimony for minor children. Bailiffs determine the amount of alimony based on the following proportions. One child is entitled to ¼ of the income, two - 1/3. For three or more children, half of the earnings will be kept (clause 1, article 81 of the RF IC).

But at the same time, keep in mind an important detail: in any case, your share of retention cannot be more than 20 percent. At the same time, the requirements of executive documents are mandatory. They must be satisfied first.

Maximum deduction amount

This means that the employee's debt to the organization can be withheld from his income only after all obligations under the writ of execution are repaid. And if, for example, your employee pays alimony for three children in the amount of half of his earnings, then you will not 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 the deduction from the salary at the initiative of the employee, there are no restrictions here. This conclusion is confirmed by the letter of Rostrud dated September 16, 2012 No. PR / 7156-6-1. An employee can dispose of his salary as he wants, if he writes an application to the accounting department of the company. At the same time, the provisions of Article 138 of the Labor Code of the Russian Federation do not apply here. That is, you can hold as much as you want and for anything.

Recovery of material damage

Let us dwell separately on the procedure for collecting and deducting material damage from wages. How much you can withhold from an employee depends on what kind of liability is provided - full or limited. With limited 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).

At the same time, the specific procedure for its calculation for such cases is not defined. So, you need to use the general rules. Clause 4 of the Regulations on the peculiarities of the procedure for calculating the average wage (approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922) establishes the following procedure. It is necessary to conduct the calculation based on the salary accrued to the employee and the time actually worked by him for the previous 12 calendar months. In this case, prior to 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 according to 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 the 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 counted it that way.

The employee works according to the usual five-day work. 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.

So the average monthly salary is:

RUB 433,546.15 : 218 days x 21 days = 41,763.62 rubles.

Thus, the organization can make deductions from the salary of the entire amount of damage caused to them - 25,200 rubles.

With full liability, the employee is obliged to reimburse 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 material liability of the 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 offense, etc. In this case, it does not matter whether an agreement on full liability has been concluded with the employee or not, he must compensate the damage in full.

Secondly, in situations where an agreement on full liability has been concluded with an employee. Such an agreement can be concluded with employees whose positions are listed in Appendix 1 to the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. In particular, a similar contract is drawn up with cashiers, cashier-controllers, as well as with storekeepers, warehouse managers, supply specialists and forwarders.

By the way, there are no drivers in this list. Therefore, it is impossible to conclude agreements on full liability with them. However, if the driver is found guilty of an accident, that is, an administrative offense, the company will have the right to recover the entire amount of damage from him.

In some cases, liability may be provided for in an employment contract with an employee. This is allowed in relation to the 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).

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 actions of the employee (Article 238 of the Labor Code of the Russian Federation).

How to calculate the retention amount

First, deduct personal income tax from the employee's salary. And already from the resulting amount, calculate the amount of deductions from the salary. The fact is that the maximum amount of deductions must be calculated based on the money that the employee will receive in his hands.

At the same time, you have the right to withhold money, including from an advance on wages for the first half of the month. It's even better to do just that. The fact is that when calculating deductions only once at the end of the month, you may encounter 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, we recall that it is not necessary to withhold personal income tax from an advance on wages.

Example

Let's continue the previous example. Nelyubov's official salary is 36,000 rubles. He does not receive standard tax deductions.

The amount of personal income tax amounted to 4680 rubles. (36,000 rubles x 13%). The maximum amount you can deduct from an employee per month is equal to:

(36,000 rubles - 4680 rubles) x 20% \u003d 6264 rubles.

Since this amount is less than the damage, the accountant withheld exactly 6264 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 recover 16,000 rubles from an employee Karpina A.S. in repayment of outstanding loans. In addition, at the beginning of August, the employee had an unreturned and unconfirmed advance payment for travel expenses in the amount of 3,000 rubles.

However, if the employee compensates for the 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 labor (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 from all other transfers you can withhold money only at the written request of the employee. In this case, in any case, it is not necessary to take into account the money that the employee receives on a return basis. For example, in debt under a loan agreement.

How to keep money if an employee quits

Let's start with company-initiated holdings. And in this case, you also have the right to withhold no more than 20 percent from the last salary of the employee. 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 a former employee how he will repay you the remaining amount of the debt. The same applies to material damage or unreturned accountable amounts. The employee refuses to return the debt? So, 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 the judges in such cases are on the side of the employees.

Now about executive orders. 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 a cover letter to it in any form, in which indicate how much you withheld from the employee.

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