Deductions from the employee's wages are made only in cases provided for by this Code and other federal laws. Deductions from the employee's salary to pay off his debt to the employer can be made: to compensate for the unworked advance payment issued to the employee on account of wages; 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; to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in case of recognition by the body for consideration of individual labor disputes fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or downtime (part three of Article 157 of this Code); 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. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on deductions from the employee's wages no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction. Salary overpaid to an employee (including in case of incorrect application of labor law or other regulatory legal acts containing norms labor law), cannot be recovered from him, except for the following cases: counting error; if the body for the consideration of individual labor disputes has recognized the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code); if wages were overpaid to the employee in connection with his illegal actions established by the court.
Legal advice under Art. 137 of the Labor Code of the Russian Federation
Yes. The law is the same for everyone.
If there is a full agreement liability and the absence of the seller's fault has not been proven, the shortage is compensated in full, but not for 1 time. See Labor Code - articles 137, 138 and chapters 37-39
The employee is absolutely right in demanding sick leave. You forget that vacation pay and disability benefits are completely different things. Vacation pay does not replace the obligation to pay sick leave. sick pay...
- Lawyer's response:
When it is possible to deduct from the salary at the initiative of the organization At the initiative of the management of the organization (administration), the following can be deducted from the employee's earnings: - unworked advance payment issued on account of the salary; - unspent and not returned in a timely manner, issued under the report, in connection with the transfer to work in another area, etc.; - overpaid wages and other amounts overpaid to an employee due to a counting error or when proving his guilt in downtime or non-compliance with labor standards; - the amount of compensation for unworked vacation days upon dismissal of an employee before the end of the year; - the amount of benefits (sick leave and maternity benefits) overpaid in the event of a calculation error (for example, when calculating earnings for billing period an arithmetic error was made) or an employee's misconduct (for example, an employee hid information that affects the amount of benefits) . Such cases of deductions at the initiative of the administration are listed in article 137 of the Labor Code of the Russian Federation and part 4 of article 15 of the Law of December 29, 2006 No. 255-FZ. Also, from the employee’s earnings, you can withhold the damage caused to the organization material damage(Articles 238 and 240 of the Labor Code of the Russian Federation). In this case, only the amount of direct actual damage is reimbursed (those losses that can be accurately calculated), the employee does not pay for the lost profit of the organization (Article 238 of the Labor Code of the Russian Federation). The employee is not liable if the property was damaged in a natural disaster, due to inadequate security, etc. A complete list of such situations is given in article 239 of the Labor Code of the Russian Federation.
- Lawyer's response:
First, figure out whose fault it is and whether they have the right to withhold your salary at all. If this is an accounting error, let them be withheld. It is possible to recover an overpaid salary from an employee if: - the overpayment occurred as a result of a counting error; – the fault of the employee in non-compliance with labor standards or in idle time has been proven; - the error was caused by the illegal actions of the employee himself. For example, if he submitted the wrong documents to the accounting department. Such rules are established by article 137 of the Labor Code of the Russian Federation. In other cases, an employee can reimburse an erroneously paid salary only according to own will(clause 3 of article 1109 of the Civil Code of the Russian Federation) Do not agree to voluntary payments (especially in cash), require a detailed explanation
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why do you need a vacation if after 2 months (with a massive reduction after 3) you are already free! you are compensated for unused vacation how much do you have to! just check it yourself during the reduction process!
- Lawyer's response:
To answer your question, you should refer to Article 137 of the Labor Code of Russia: “Article 137. Limitation of deductions from wages Deductions from an employee's wages are made only in cases provided for by this Code and other federal laws. Deductions from the employee's salary to pay off his debt to the employer can be made: to compensate for the unworked advance payment issued to the employee on account of wages; 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; 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 consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code) ; 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. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on deductions from the employee's wages no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction. Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases of: a counting error; if the body for the consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code); if wages were overpaid to the employee in connection with his illegal actions established by the court. In the judicial practice of the courts of general jurisdiction of Russia, one can find a decoding of the concept of "counting error": 1. “... a counting error should be understood as an error made directly in the calculation process during mathematical operations, i.e., incorrect application of the rules of mathematics” (“Judicial practice in civil cases of the Supreme Court of the Republic of Karelia for the 1st half of 2009” // Bulletin judicial practice Supreme Court of the Republic of Karelia, 2009, No. 2); 2. “... According to the meaning of the law, a counting error is an arithmetic error, and not an incorrect application of the norms of labor legislation” (Review of the judicial practice of the Khabarovsk Regional Court for 2010 (Part 1) X / / Journal “Judicial Power”, May 31, 2010. , No. 1 (5); official website of the Khabarovsk Regional Court) . If the employer has not proven the fact of a "counting error", or the disputed legal relations do not fall under those specified in Article 137 of the Labor Code of Russia, then legal grounds for the reverse recovery of wages paid to the employee are not available.
- Lawyer's response:
No, it's illegal. In accordance with Article 137 of the Labor Code, the following can be deducted from the salary: - advance payment for unworked time - advance payment issued for a business trip, unspent and not returned in a timely manner - overpaid amounts of vacation taken in advance (upon dismissal) - amounts overpaid due to a calculation error (a counting error is an error in arithmetic operations, for example, 2 + 2 = 5). There are no other cases. In your case, the employer apparently considered that you received travel allowances and did not report on them. Let's leave aside the fact that during a business trip: a) you should have been acquainted with the relevant order under the signature; i.e., we will not dispute the very fact of being sent on a business trip. Even if you really, from the point of view of the employer, were on a business trip and did not report on it .... it doesn’t matter. This does not negate the fact that the employer violated the very procedure for withholding, provided for by the same article 137 of the Labor Code. According to the law, it was necessary: a) to offer you to voluntarily return the overpaid amounts (in writing) b) to obtain your consent (again in writing) c) within a month to issue an order to withhold the excess payment from the salary (the month is calculated from the date when you must beat report on a business trip general rule(clause 11 of the Procedure for maintaining cash transactions) is three working days from the date of return from a business trip); d) withhold monthly no more than 20% of the salary (. Thus (leaving aside the very reason for the deduction), the employer, in accordance with Article 137 of the Labor Code, has the right to withhold the overpaid amount from the employee’s salary only if two basic conditions are met: with the consent of the employee and with the presence of an order issued within a month on such deduction.At the same time, the amount of deduction in accordance with Article 138 of the Labor Code cannot exceed 20% of the monthly payments due to you.
- Lawyer's response:
Article 137 of the Labor Code of the Russian Federation contains an exhaustive list of cases of deductions from an employee's wages. Grounds for forced deduction of the cost of training from the employee's salary this article does not provide. However, by agreement with the employee, it is possible to deduct any amounts, such as the costs of training the employee. In the situation under consideration, it should be borne in mind that deduction is possible only on the basis of an application from the employee. If these conditions are not met, the employee may judicial order demand the return of illegally withheld amounts. However, there is one exception to this rule. In particular, art. 249 of the Labor Code of the Russian Federation establishes cases of reimbursement of costs associated with the training of an employee. Namely, in the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of the training, unless otherwise provided employment contract or training agreement. Thus, for the application of Art. 249 of the Labor Code of the Russian Federation, it is necessary that the following conditions are met: - sending an employee for training by the employer; - conclusion employment contract with the condition of training the employee at the expense of the employer or a training agreement; - the presence in the employment contract or training agreement of the conditions to work out after training for a certain period; - payment by the employer of the cost of employee training; - dismissal of an employee before the expiration of the period stipulated by the employment contract or training agreement; - lack of valid reasons for dismissal.
- Lawyer's response:
No one has the right to withdraw money from the card except you and the bank. But the accounting department has the right to recalculate and deduct the overpayment from your salary next month. No one will ask you for consent. Article 137 of the Labor Code of the Russian Federation. It is possible to recover an overpaid salary from an employee if: - the overpayment occurred as a result of a counting error; – the fault of the employee in non-compliance with labor standards or in idle time has been proven; - the error was caused by the illegal actions of the employee himself. For example, if he submitted the wrong documents to the accounting department. In other cases, an employee can reimburse an erroneously paid salary only at his own request (clause 3 of article 1109 of the Civil Code of the Russian Federation).
If this is not the fault of the employee and not a counting error (2+2=5), then you have the right to voluntarily return, but are not required to. Article 137 of the Labor Code of the Russian Federation. , paragraph 3 of Art. 1109 of the Civil Code of the Russian Federation). Also an example from jurisprudence
- Lawyer's response:
you have the right not to give back, because it is their mistake You can recover an overpaid salary from an employee if: the overpayment occurred as a result of a counting error; the employee’s guilt is proven in failure to comply with labor standards or in idle time (these circumstances must be established by the commission on labor disputes or the court); the error was caused by the misconduct of the employee himself. For example, if he submitted incorrect documents for standard tax deductions to the accounting department (this circumstance must be confirmed by the court). Such rules are established by article 137 of the Labor Code of the Russian Federation. In other cases, an erroneously issued salary cannot be withheld from an employee - he can reimburse it only at his own request (clause 3 of article 1109 of the Civil Code of the Russian Federation). In particular, it is impossible to recover an overpaid salary from an employee if the overpayment occurred as a result of a technical error (ruling of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11-17).
- Lawyer's response:
No. Train has already left. In general, to begin with, figure out: whose fault is it and whether they have the right to collect your salary at all. If this is an accounting error, let them be withheld. It is possible to recover an overpaid salary from an employee if: - the overpayment occurred as a result of a counting error; – the fault of the employee in non-compliance with labor standards or in idle time has been proven; - the error was caused by the illegal actions of the employee himself. For example, if he submitted the wrong documents to the accounting department. Such rules are established by article 137 of the Labor Code of the Russian Federation. In other cases, an employee can reimburse an erroneously issued salary only at his own request (clause 3 of article 1109 of the Civil Code of the Russian Federation).
- Lawyer's response:
Legislation allows you to withhold an erroneously paid salary in the event of an accounting error by an accountant (Article 137 of the Labor Code of the Russian Federation). However, a counting error is understood as an error in calculating the amount of salary (i.e., an arithmetic error in calculations) (determination of the Supreme Court of the Russian Federation of January 20, 2012 No. 59-B11-17). The head of the institution must issue an order on the recovery of overpaid wages (letter of Rostrud dated August 9, 2007 No. 3044-6-0). An order must be issued no later than one month from the date of expiration of the deadline set for the employee to return the overpayment. If such a period was not set for the employee, the order must be issued no later than a month after the discovery of excessive payment of wages. Withholding is possible only if the employee does not dispute the fact and amount of the overpayment. This conclusion follows from Article 137 of the Labor Code of the Russian Federation. In addition, in order to avoid disputes with the labor inspectorate, you can draw up a memorandum justifying the reason for withholding the overpayment.
- Lawyer's response:
The money must be returned According to article 137 of the Labor Code, the employer has the right to withhold from the employee's salary the amounts overpaid to him due to counting errors. The decision to withhold the administration of the enterprise may be made no later than one month from the date of expiration of the period established for the return of incorrectly calculated payments, provided that the employee does not dispute the basis and amount of the deduction.
- Lawyer's response:
Daria Kozlova
I quit on October 9, I owed 860 rubles. explained by the fact that it is connected with the vacation pay that I received in June. in kindergarten she worked for three years, every year she went on vacation in the summer, this too since July, she quit on October 9th and owed 860 rubles. I don't understand why it has to do with holidays.
- Lawyer's response:
According to Article 137 of the Labor Code, deductions from the employee's wages are made upon dismissal of the employee before the end of the working year in which he has already received annual paid leave, for unworked vacation days. It turns out that you were on vacation for the working periods from 11/21/2005 to 11/20/2006, from 11/21/2006 to 11/21/2007, from 11/21/2007 to 11/20/2008 and from 11/21/2008 to 11/20/2009. In July 2009, you received leave in advance and, upon dismissal, did not complete your full-time work for 1 month and 12 days. During this time, they withheld this amount from you.
- Lawyer's response:
- Lawyer's response:
What is wrong with last year's vacation? Overpaid? If yes, why, for what reason? An incorrectly posed or incomplete question leads to an incorrect answer. The grounds and procedure for deduction by the employer from the employee's wages of monetary amounts are set out in Art. 137 of the Labor Code of the Russian Federation. Due to the fact that in your question there is no completeness of information that allows you to correctly assess the situation and give a qualified answer, I suggest that you carefully read the article I mentioned above. In general, I will add the following: Wages overpaid to an employee (including in case of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases of: - counting error; - if wages were overpaid to the employee in connection with his illegal actions established by the court. The employer has the right to make a decision to deduct from the employee's salary no later than one month from the date of expiration of the period established for repayment of debts or incorrectly calculated payments, and provided that the employee does not dispute the grounds and amounts of deduction. In your case, the deadlines for the legitimacy of the deduction by the employer from your salary of monetary amounts have passed and, obviously, the employer incorrectly applied the law when accruing vacation pay to you. If the employer nevertheless withholds the money, then I advise you to immediately contact the State Labor Inspectorate, the ZelAO prosecutor's office or the court. I advise you to file a complaint with the prosecutor's office and the State Labor Inspectorate in Moscow at the same time.
- Lawyer's response:
Deductions from the employee's wages are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws. So, according to Article 137 of the Labor Code of the Russian Federation, deductions from the employee's salary to pay off his debt to the employer can be made: to compensate for the unworked advance payment issued to the employee on account of wages; 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; 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 the consideration of individual labor disputes recognizes the employee's guilt in non-compliance with labor standards or downtime; 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 days of leave. Deductions for these days are not made if the employee leaves, for example, in connection with the liquidation of the organization, the reduction of staff or the conscription of the employee for military service, the recognition of the employee as completely disabled in accordance with medical opinion, the onset of emergency
- Lawyer's response:
You are not obliged to perform work that is not part of your job duties, since in accordance with the law, the employee has the right to perform work stipulated by the employment contract, and the employer is prohibited from demanding work from the employee that is not stipulated by the employment contract. As for the fine, firstly, a monetary fine is not a disciplinary sanction, and by virtue of Art. 192 of the Labor Code should not apply. Secondly, the imposition of a disciplinary sanction for refusing to perform work that is not part of the employee's official duties is illegal. Thirdly, Article 137 of the Labor Code defines an exhaustive list of cases in which an employer can deduct from an employee's wages, which does not include the imposition of a fine for failure to perform certain work. If you do not want to do someone else's work, then take advantage of articles 379 and 380 of the Labor Code, according to which you can, by notifying the employer in writing, refuse to perform work that is not related to your official duties.
- Lawyer's response:
It's illegal. All these funds, as well as others, which he deems necessary to create, the employer creates independently. Such a deduction from wages may be possible, but only with the voluntary will of the employee himself. However... which of the workers, being in a sober mind and bright memory, will go for it? The employer has the right, and, in some cases, is obliged to make deductions from the employee's wages only in strictly defined cases specified by law. These include: Income tax withholding; Deductions under executive documents. Deductions based on Article 137 of the Labor Code of the Russian Federation: to compensate for an unworked advance payment issued to an employee on account of wages; 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; 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 the consideration of individual labor disputes recognizes the employee's guilt in non-compliance with labor standards or downtime; 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. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of the Labor Code of the Russian Federation. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction. Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases of: a counting error; if the body for the consideration of individual labor disputes recognizes the fault of the employee in non-compliance with labor standards or idle time; if wages were overpaid to the employee in connection with his illegal actions established by the court.
The ideal option is when the employee will work for some time after the vacation. Then, having calculated his salary, the accountant will set off the unearned amounts and correct the accrued taxes. But another situation is also possible: the employee does not return ...
- Lawyer's response:
It is possible to return the overpaid amount of wages only in court. Indeed, according to Art. 137 of the Labor Code of the Russian Federation, funds can be withheld only from the wages of employees working in the organization at the time of detection of a counting error. Because with a retired employee labor relations terminated, the specified provisions of the labor legislation do not apply to him. That is why it is possible to recover money only in the manner and on the conditions provided for by civil law. Only through the court they can recover, but is this money worth it for them? 60 "Obligations due to unjust enrichment" of the Civil Code of the Russian Federation.
- Lawyer's response:
Everything is completely illegal. Since, firstly, deductions from an employee's salary can be made by the employer only on the grounds provided for in Article 137 of the Labor Code. So, according to the norms of this article, the amount of overpaid wages can be withheld from the employee if the accountant made a counting error. A counting error should be understood as errors made in the calculation of wages, but not in its double calculation, for example, if wages were received at the cash desk and the second time it was credited to the salary card, and even more so, the calculation of wages and vacation pay at the same time is not countable mistake, and inattention in this case, it is unlawful to make deductions from the employee. secondly - In accordance with Article 137 of the Labor Code, the employer has the right to decide to withhold the overpayment from the employee's salary no later than one month from the expiration date for the return of incorrectly calculated payments, and provided that the employee does not dispute the grounds and amounts of the deduction. Thus, at least they should have notified you of this in writing, also attaching to this notice an act of the commission confirming that the overpayment was due precisely to a counting error. thirdly, when withholding overpaid wages, for some reason they firmly forgot about the norms of Article 138 of the Labor Code, which states that the total amount of deductions when paying wages cannot be more than 20 percent.
- Lawyer's response:
Everything is completely illegal. Since, firstly, deductions from an employee's salary can be made by the employer only on the grounds provided for in Article 137 of the Labor Code. So, according to the norms of this article, the amount of overpaid wages can be withheld from the employee if the accountant made a counting error. A counting error should be understood as errors made in the calculation of wages, but not in its double calculation, for example, if wages were received at the cash desk and the second time it was credited to the salary card, and even more so, the calculation of wages and vacation pay at the same time is not countable mistake, and inattention in this case, it is unlawful to make deductions from the employee. secondly - In accordance with Article 137 of the Labor Code, the employer has the right to decide to withhold the overpayment from the employee's salary no later than one month from the expiration date for the return of incorrectly calculated payments, and provided that the employee does not dispute the grounds and amounts of the deduction. Thus, at least they should have notified you of this in writing, also attaching to this notice an act of the commission confirming that the overpayment was due precisely to a counting error. thirdly, when withholding overpaid wages, for some reason they firmly forgot about the norms of Article 138 of the Labor Code, which states that the total amount of deductions when paying wages cannot be more than 20 percent. So if I were you, I would write to the head of the organization with a request for additional accrual of 65% of wages, since in accordance with Article 138 of the Labor Code of the Russian Federation, the amount of deduction could not be more than 20% at a time, you can also list all other facts of violations in the application admitted to you.
- Lawyer's response:
As for the collection of a fine for committing a disciplinary offense by an employee (including in the case of disclosure of trade secrets), this is illegal, since: - a fine in accordance with Article 193 of the Labor Code is not provided as a measure disciplinary responsibility, and penalties not provided for by law are not subject to application; - Article 137 of the Labor Code defines an exhaustive list of cases in which an employer has the right to levy a penalty on an employee's earnings, and this article also does not provide for a reduction in an employee's earnings by the amount of a fine. So even if you sign this agreement, then its terms relating to the imposition of a fine on you are void and unenforceable. If you are offered to sign any contract, then keep in mind that, in accordance with the law, contracts are concluded by agreement of the parties, and not by coercion, so you have the right to refuse to sign a contract that does not suit you. If you are offered to sign not an agreement, but a regulatory act on trade secrets approved by the employer, then on the basis of Art. 22 of the Labor Code Lawyer's answer:
The list of grounds and amounts of deductions from wages is regulated by Articles 137 and 138 of the Labor Code of the Russian Federation. Article 137 of the Labor Code of the Russian Federation lists deductions made by the employer in its own favor in repayment of the employee's debt to him: - to compensate for the unworked advance payment issued to the employee on account of wages; - 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; - 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 the consideration of individual labor disputes recognizes the employee's guilt in non-compliance with labor standards or downtime; - upon his dismissal before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. However, upon dismissal on grounds that, from the point of view of the legislator, are valid and which are listed in this paragraph, deductions for unworked vacation days are not made. The employer has the right to make the listed deductions if the employee does not dispute their grounds and amount and if the monthly period established for the voluntary return of the amounts has not expired. If at least one of these conditions is not met, that is, if the employee disputes the deduction or the monthly period has expired, then the employer loses the right to indisputable recovery of amounts, and it can only be carried out in court. In addition, deductions from wages are made to pay off the employee's obligations to the state (taxes, fines) and to third parties (alimony, payments on enforcement orders). But the deduction itself in all cases is carried out by the employer, since he calculates and pays wages. The last part of Article 137 of the Labor Code of the Russian Federation establishes general rule for which overpaid wages are not recoverable. The exceptions are the following cases: - wages are overpaid as a result of a counting error; - the body for the consideration of individual labor disputes recognized the fault of the employee in non-compliance with labor standards or idle time; - wages were overpaid to the employee in connection with his illegal actions established by the court. In these cases, deduction is also made within a month from the date of discovery of the fact of excessive payment. According to the general rule set out in article 138 of the Labor Code of the Russian Federation, deductions from wages made by the employer by virtue of the rights granted to him cannot exceed 20 percent of the wages due to the employee (excluding personal income tax). Other rules apply to deductions from wages under executive documents. In accordance with the Federal Law of July 21, 1997 No. 119-FZ “On Enforcement Proceedings”, when executing a writ of execution, more than 50 percent of the salary cannot be withheld from the debtor until the amounts recovered are paid in full. When deducting from wages under several executive documents, 50 percent of earnings must be retained for the employee. These limits on the amount of deductions do not apply when serving corrective labor, recovering 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 a breadwinner, and compensation for damage caused by a crime. In these cases, the amount of deductions cannot exceed 70 percent of wages ( Art. 66 of the Labor Code of the Russian Federation).
- Lawyer's response:
Alina, in accordance with Article 3 of the Federal Law of the Russian Federation No. 14-FZ of February 8, 1998 "On Limited Liability Companies" (hereinafter referred to as the Law), the company is liable for its obligations with all its property. And according to Article 44 of the Law, members of the board of directors (supervisory board) of the company, the sole executive body (head) of the company, members of the collegial executive body of the company, as well as the manager are liable to the company for losses caused to the company by their guilty actions (inaction), if other grounds and the amount of liability is not established by federal laws. That is, they will not be liable for transactions that caused damage to society if it is proved that they acted in the interests of society within a reasonable business risk, that is, when there were real, calculated reasons to expect a positive result. In the event that liability is assigned to several persons, then their liability to the company will be joint and several in accordance with Art. 323 of the Civil Code of the Russian Federation. At the same time, members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company who voted against the decision that caused losses to the company, or who did not take part in the voting, are not liable. If the waste of budgetary funds by LLC was the result of evading accounting in the manner prescribed by the legislation of the Russian Federation and regulations bodies that regulate accounting, distortion of financial statements and non-compliance with the deadlines for its submission and publication, then in accordance with Art. 18 of Federal Law No. 129-FZ, criminal or administrative liability is borne by the head and / or other persons (for example, Chief Accountant) . Let the head of your LLC not err on his own account. Indeed, according to Art. 6 of the Law, in any case, responsibility for the organization of accounting in organizations, compliance with the law in the implementation business transactions carried by the leaders of the organizations. In essence, the measure planned by the head of the LLC does not indicate a decrease in the wages of the employees of the LLC, but a deduction from their wages, which will be a direct violation of the requirements of the articles. 137 and 138 of the Labor Code of the Russian Federation. Thus, a reduction in wages for employees due to the waste of budget funds by LLC will not be lawful, and if this happens, you will have the right to apply for the restoration of violated rights to the labor inspectorate in Moscow and / or the prosecutor's office.
Nadezhda Ershova
Article 137 of the Labor Code of the Russian Federation applicable to civil servants?. Restrictions on deductions from wages Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service Russian Federation"are not settled. Is it permissible in this case to apply Article 137 of the Labor Code of the Russian Federation in accordance with Article 73 federal law dated 27.07.2004 N 79-FZ "On the state civil service of the Russian Federation"? federal Service, in which I used to work (I worked until June 2013) requested the return of the "incorrectly" accrued salary for December 2012. The salary for December 2013 was accrued twice due to a program failure. I thought that the prize fell out, and now I think so. And without any letter, notification, request, they demand a refund. I believe that there must be a rationale, namely: that the salary was paid to me in excess due to a calculation error (i.e., arithmetic). Advise me how to act if the Federal Service where I used to work writes a letter to my current management stating that I unfairly fulfilled my job responsibilities(in fact, there was nothing like that), knowing that he received a double salary, did not say anything, etc.? What evidence base should be collected to file a libel complaint with the prosecutor's office?
Konstantin Tsvetov
After the audit, they received a shortage, in the amount of 100 thousand rubles, 1 seller works. How should you act according to the law? How to keep it all? If there are articles of the law, please delete the links. Since the seller refuses everything and claims that by law she is obliged to pay only 25% of the shortage. Thank you.
Oleg Potemin
Dismissal after vacation in advance, during which there was sick leave
Veronika Frolova
The employer overpaid me 10,000 rubles in his own way. I quit. Can they withhold this money from my vacation pay?
Vitaly Yablochnikov
The accounting department said that at the end of the year I owe a debt and I have to pay it in cash. Is this normal and legal?
Natalia Smirnova
Over the course of a year, I was mistakenly paid more than it should be, now it has become clear and they want to keep this amount. Is this legal and how can I prevent it???
Evgenia Volkova
Was it legally deducted from the salary the funds incorrectly accrued by the accounting department in the amount of 85% of total amount payments?. At the end of November-beginning of December I was on training, these 3 weeks were considered to me as a business trip (although I did not draw up any travel sheets) and accrued money. I checked with the accounting department whether the calculation was made correctly, because there was no business trip, to which they answered that everything was correct. In addition, from the calculation it was clear that I was undercharged with a monthly bonus (instead of 7 tons, they charged 1 tons). With this question I turned to the accounting department, they promised to look into it. In January, the advance was not transferred, explaining this by the fact that he went to pay the debt on the RFP. After another half a month, a salary of 3 thousand rubles came. This is about 15 percent of my salary. In connection with this situation, a lot of debts, and with such a salary I can not pay for the apartment. In general, very big problems arose. Tell me, is it legally deducted from me the money erroneously accrued by the accounting department in such a large amount and without my consent? If possible, please give links to articles in the Labor Code of the Russian Federation, for a competent justification of my position on this issue
Mikhail Loktistov
Please tell me if the employer has to deduct the cost of training from the salary. according to the employment contract, it is written "the employee is obliged to compensate the employer for the damage caused in accordance with Article 39 of the Labor Code"
Daniil Kochmarov
Can the company recalculate the salary and withdraw the wages erroneously charged to the card? An employee was mistakenly charged a salary when he was actually on sick leave. Due to an error in computer system the sick leave was "lost" and the days of appearances were affixed, as an employee used to go to work. Can the company recalculate the salary and withdraw the money accrued to the card of this employee? Or the employee has the right not to give this money back. Accordingly, is it necessary to ask this employee to write an application for consent to recalculate his salary? Thanks in advance for your reply!
Anna Dorofeeva
Do I need to return the money paid for July 2012 if I worked for 5 days instead of a month? A minor child got a job under a monthly contract through a business incubator. Worked for only 5 days. In September, the salary was paid as for the whole month. Now they are asking for a refund of $3,000. Is there an article in the labor legislation regulating this situation? What should parents do?
Valentina Osipova
Salary from previous job. Good day. I quit my job, but the accounting department apparently did not untie my bank work card and I received an advance and a salary within a month and a half. fee (3 thousand + 3 thousand + 3 thousand). Today I drove up to the director from a previous job and informed him of such a case. Later he called back and confirmed this fact. And he asked the question: How long will I be able to return these 9 thousand. The fact is that I withdrew the first 6 thousand and spent it (I thought it was normal and the 13th salary came or some other bonus) and the last 3 thousand are on the card. I have two options: Or give these 3 thousand and every month give them the remaining 6 thousand in installments, Or give them 3 thousand and that's all (do not give 6). The thing is, I'm on probationary period new work from. I have a trainee here, I don’t really want to give them 6 thousand from it, even in parts. The real question is, can I legally not give them that money? I know there is a law on unjust enrichment. Does it fit my situation?
Galina Fedorova
The individual entrepreneur has the right to recover through the court from the employee, whom he fired in 2013, the amount of salary overpaid in 2012?
Oksana Alekseeva
Question. The organization paid the employee the wrong salary. It turned out that he owed the company. Can we withhold the overpaid amount from his salary next month?
Nadezhda Lebedeva
For 4 months, they incorrectly handed out a salary of 2,000 more. did not make an advance payment to the computer) then they calculated it immediately for 4 months, is there such a right to calculate?
Claudia Markova
there is a question. hello! I was on vacation in February (vacation was provided according to the schedule approved by the personnel department), today, when applying for dismissal in the settlement department, they told me that there would be a deduction in the amount of ~ 7,000 rubles for "advance taken vacation". Does the company have such actions?
Alexey Babaevsky
Can an employer deduct money from salary for incorrectly issued last year's vacation?
Zhanna Volkova
the financier overpaid the salary, the employee refuses to return it. How to be?
Pavel Petreykin
Am I obligated to do work if it is not part of my official duties, but. the head of the department obliges by order, and in case of non-compliance, a fine of 50% of the salary???
Zhanna Nikitina
Is it legal to deduct money from an employee's salary to form a reserve vacation fund for this employee
Diana Morozova
I took vacation in advance, but I had to quit, they demand to return part of the vacation pay, can I work off this amount?
Oksana Ivanova
how to be?. hello! please tell me what should I do in this situation ... I work in one big firm sales assistant, everything was fine, everything seems to be fine, but recently I accidentally dropped 2 monoblocks from the window, the company has a markdown store and they were sent there, and they said that I should pay their markdown. for these 2 monoblocks they counted me 30,000 rubles. so, they deduct 10,000 from me every month, everything seems to be fine, when suddenly they tell me that one of the monoblocks was sent to the service center, and that something is wrong with it, and now they want to deduct from me the repair of the monoblock, or pay the difference and say you can take it to yourself. the question is, can the company deduct something else from me? after all, when they discounted the monoblock, they didn’t find anything else and I only paid for its dents and small defects that are visible to the naked eye. further, did I have to pay for them at all, because I didn’t drop them on purpose, but the goods are in an open display and everyone can drop them. please justify the answer. thanks in advance!
Lydia Zaitseva
Does the organization have the right to demand the return of the issued calculation? the accountant counted incorrectly, but missed after 7 months
Eduard Proschalygin
Please tell me. How to calculate vacation pay. The company paid me the wrong salary. paid 2.5 times more than they should have. Now the accountant decided to keep. And I received 15% of my salary for October. The whole horror is that I found out about it only after I saw my salary. Does the accountant have the right to do so? In fact, I was left without money. Is it my fault? Why should I pay for this.
Vladislav Yankov
What should I do if I do not want to sign a trade secret agreement? 2 months after the employment, they brought me a non-disclosure agreement for trade secrets. I was embarrassed by several wordings that whether or not the fact of disclosure of information will be proven, a fine of 10 minimum wages is imposed on the employee. I refused to sign this contract. And she asked me to take my version of the contract in order to consult with a lawyer. I was denied. What to do and how to act in this situation? If they threaten to fire me...
Zinaida Pavlova
Can the LLC lower the salary in order to reimburse the money to the budget?. LLC squandered 3 billion rubles from the city budget, in connection with this, they want to reduce the wages of employees by 25-30%, in return for this money to the budget, can you do this?
In Art. 137, 138 of the Labor Code of the Russian Federation establishes the procedure for deducting amounts from an employee's earnings and limits on their size. Deductions are allowed only in cases provided for by the Labor Code and federal laws. The establishment of rules and restrictions is aimed at ensuring the protection of the rights of workers to wages.
General order
Deductions from the employee's earnings to pay off his debt to the employer are carried out in order to:
- Compensation for the unworked advance payment provided to the employee on account of salary.
- Repayment of an unspent and unreturned advance payment provided to an employee in connection with a transfer to another location for another job or a business trip, or in other cases.
- Reimbursement of amounts paid to an employee in connection with accounting errors, if the employee is found guilty of non-compliance with labor standards or in idle time. In the latter case, the basis is the decision of the body authorized to consider individual labor disputes.
According to provisions h. 2 Article. 137 of the Labor Code of the Russian Federation, deductions are allowed upon dismissal of an employee until the end of the year on account of which paid leave was provided. Withholding is made for non-worked days. An exception to the rule, according to Art. 137 of the Labor Code of the Russian Federation, there are cases of termination of the contract on the grounds established in article 77 (part 1, clause 8), art. 81 (part 1 item 1, 2, 4), art. 83 (p. 1, 2, 5, 6, 7).
Timing
As established in Part 3 of Art. 137 of the Labor Code of the Russian Federation, the employer may issue an order to withhold those specified in par. 2, 3, 4 of the second part of the norm, before the expiration of 1 month. from the date of expiration of the period allotted for the return of an advance, incorrectly calculated payments or repayment of debts. This rule applies if the employee does not object to the grounds and amount of deduction.
Exceptions
They are provided for in Part 4 of Art. 137 of the Labor Code of the Russian Federation. Salary overpaid to an employee cannot be recovered from him, except in the following cases:
- Mistakes in calculations.
- When a citizen is found guilty of idle time or non-compliance with labor standards, which is confirmed by the commission on labor disputes.
- Excessive payment of earnings due to illegal actions of an employee established by the court.
Art. 137 of the Labor Code of the Russian Federation with comments
The content of the norm is consistent with the provisions of the ILO Convention on the Protection of Wages. Article 8 of this document provides that deductions from earnings can be made within the limits and in the manner prescribed in national legislation, in collective agreements or decisions of arbitration courts. Employees must be familiar with the established rules.
It should be noted that domestic legislation does not provide for the possibility of making deductions on the basis of a collective agreement, since the relevant conditions would worsen the position of a citizen in comparison with those established by law, which is unacceptable.
Any deductions at the discretion of the employer associated with the imposition on the employee of a part production costs, satisfaction of claims brought by third parties to both parties of legal relations (employer and employee) without a decision of the court or the consent of the employee.
Taxation
Within the meaning of paragraph 1 of Art. 137 of the Labor Code of the Russian Federation, deduction from an employee's earnings can be carried out in the case expressly established in federal law. Currently, the Tax Code provides for the obligation of the employer as a tax agent to calculate and transfer personal income tax to the budget.
Tax deductions are made according to the rules of art. 226 NK. At the same time, its amount cannot exceed 50% of the salary. Withholding is made directly from income at the time of actual payment.
fines
They also apply to deductions permitted by Art. 137 of the Labor Code of the Russian Federation. The Code of Administrative Offenses contains Art. 32.2, according to the provisions of which the fine must be paid by transferring / depositing a specified amount to a banking or other organization.
In case of non-payment on time, a copy of the decision on the imposition of this administrative sanction is sent by the authorized body / employee to the employer for the forced deduction of the amount from the earnings of the perpetrator.
A fine can also be imposed on the perpetrator as a criminal punishment. The recovery of the established amount is carried out by a court verdict.
As established by 31, a person must deduct the fine imputed to him before the expiration of a month from the date the court decision enters into force.
If the order is not executed voluntarily within the prescribed period, the penalty may be applied to the property of the perpetrator. If the amount of the penalty is less than 2 minimum wages, material assets person is not enough to pay off the debt, it is allowed to deduct the amount from the earnings of the perpetrator. Control over the execution of court orders is entrusted to employees of the FSSP.
Deductions during corrective labor
They are also made on the basis of a sentence.
According to the provisions of Article 40 of the Penal Code, deductions are made from the earnings of the convict in the amount determined by the court. The timely and correct collection of the established amounts is the responsibility of the employer. The retention rules are enshrined in article 44 of the PEC.
Enforcement proceedings
It is carried out on the basis of documents issued by court orders / decisions, settlement agreements, etc.
According to Article 64 of the Federal Law No. 119, deductions from wages can be carried out to recover:
- periodic payments;
- amounts not exceeding 2 minimum wages;
- debts in the absence of the debtor's property sufficient to pay off obligations.
Nuance
The legislation provides for the possibility of making a deduction from the salary to pay off the employee's debt to the employer in the cases established by Art. 137 of the Labor Code of the Russian Federation, and as compensation to the latter for property damage.
The rules for compensation for losses to the employer are enshrined in Article 248.
Advance debt
Unused funds issued to an employee in connection with a business trip, transfer, etc., must be returned to them voluntarily. The employee must report on the costs incurred. In case of evading the return, the amounts will be collected by force.
In this case, 2 conditions must be met:
- The employee does not dispute the grounds and amount of the penalty.
- The employer issued an order before the expiration of a month from the date of expiration of the period provided for the return of advance amounts.
Explanations for Part 3
Employee objections must be in writing. The employee in his application may refer to the illegality / unreasonable deduction of amounts, as well as the incorrect determination of the amount of the penalty.
The term for the return of the unworked advance payment provided on account of the salary is determined by agreement of the parties. For amounts issued in connection with a business trip, the refund period is 3 days from the date of return of the employee.
Unworked vacation days
When an employee is dismissed before the end of the year in which he was granted leave, the deductions provided for in norm 137 are made at the time of the Rule for the provision of paid rest days, article 122 of the Code fixes.
The list of exceptions to this rule is expressly enshrined in Part 3 of Article 137 and is considered exhaustive.
Counting error
In practice, cases of excessive payment of salary amounts to a citizen due to incorrect arithmetic actions of the person responsible for the calculations are not uncommon.
To withhold such amounts, the 2 conditions mentioned above must be met: the absence of objections from the employee and the observance by the employer of the one-month period for issuing a recovery order. If this period is missed, the amounts can be withheld only in court.
When implementing the provisions of part 4 of Art. 137 of the Labor Code of the Russian Federation, one important nuance should be taken into account. An incorrect application of the legislation regulating the procedure for remuneration of labor, the terms of a collective agreement, or labor contract. Accordingly, overpaid funds in such cases are not subject to recovery. Withholding these amounts can be challenged in court.
The performance of labor duties in our time is not free, since each employee is entitled to wages. The legislation provides for cases when the amount of the payment will be reduced as a result of deductions from wages provided for in Article 137 of the Labor Code of the Russian Federation and other Federal laws. To know in more detail the rights and obligations, as well as the procedure for the implementation of penalties from the salary, you should consider this issue in more detail.
payroll deductions
In this law, and specifically in Article 137 of the Labor Code of the Russian Federation, cases are prescribed that give the employer the right to withhold a certain amount from the salary. They are the following:
- for an unworked advance payment issued in advance;
- repayment of an unspent advance payment that was not returned on time;
- for the erroneous accrual of an amount greater than the prescribed;
- for paid annual leave if the dismissal occurred before the end of the working year.
This recovery from the salary is possible only within a month after the occurrence of the event. Also, the employee should not have any objections, including challenging it in court.
And you can find out how many percent of the salary is an advance in this article.
Income tax after deduction from wages
Mandatory collections are carried out from the salary, which include personal income tax and collections based on the results of the issuance of a writ of execution. Personal income tax is withheld from the salary by employers, based on the calculated amount by tax agents on a monthly basis. Income tax is 13 percent of wages after deduction. This rate a tax of 13 percent is always taken into account for the standard deductions provided for in Article 218 of the Labor Code of the Russian Federation. For some other types of income, there may be an individually calculated rate.
Withholding alimony from wages under a writ of execution
The presence of a writ of execution is mandatory when withholding alimony. It indicates the amount of payment, which is set in a fixed amount of money, or they can calculate a certain percentage from the salary. Alimony payments are made on a monthly basis. After payroll, there are only 3 days for this. It is worth noting that alimony is transferred after personal income tax has been deducted from the total amount. Also, when calculating the amount of alimony, material assistance and travel expenses cannot be taken into account.
The procedure for making payments from the salary for the payment of alimony is quite simple. The money is credited to the account, which is usually written in the writ of execution. This account belongs to the FSSP, and from it the funds are already transferred to the recipient's account. Moreover, at his request, they can act not every month, but quarterly. If the employee's income level increases, then the employer must report this information, otherwise sanctions will be applied to him.
Application for deduction from wages - sample
The employee can independently take the initiative regarding the recovery of funds from the salary. In this case, he needs to write an application addressed to the employer and indicate in it the following data:
- at the top, a “cap” is written, where the full name and position of the head and employee are indicated;
- document's name;
- request and reasons for penalties;
- amount of penalties;
- details for sending funds;
- date of commencement and procedure for collection;
- date and signature.
Order to deduct money from wages
In the Labor Code of the Russian Federation there is no official form for writing an order for automatic payments of funds from a salary. The main thing is to provide the following information:
- company name;
- Title of the document;
- date and order number;
- collection data;
- signature of the head, accountant and employee.
Although the order has a free form of writing, its content must contain information about the person from whom the recovery is made, in what amount, and also what grounds there are for this.
The maximum amount of deductions from salary under article 138
Defines a limit on the amount of deductions from wages. According to this article, the total amount of all deductions from wages cannot exceed 20%, except in cases of other content in the Federal Law. In some situations, the maximum size can increase up to 50%. This can happen first of all when collecting on a writ of execution. It is also possible if there are several executive documents. There are times when maximum amount penalties can increase up to 70%. They are the following:
- correctional labor by court order;
- alimony;
- when causing harm to health;
- because of the crime committed;
- survivor benefits.
It is important to note that the increased amount of payments can be withheld only for alimony for minor children, in any other cases it is not more than 50%.
Thus, deductions from wages are in line with the standards specified in Article 137 of the Labor Code of the Russian Federation. The application procedure must be strictly followed in order to avoid debt and liability for its occurrence.
Full text of Art. 137 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice under article 137 of the Labor Code of the Russian Federation.
Deductions from the employee's wages are made only in cases provided for by this Code and other federal laws.
Deductions from the employee's salary to pay off his debt to the employer can be made:
to reimburse the unworked advance payment issued to the employee on account of wages;
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;
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 consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code) ;
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. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.
In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on deductions from the employee's wages no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction.
Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in the following cases:
counting error;
if the body for the consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);
if wages were overpaid to the employee in connection with his illegal actions established by the court.
Commentary on Article 137 of the Labor Code of the Russian Federation
1. According to Part 1 of Art. 8 of ILO Convention No. 95 "Regarding the Protection of Wages" (1949), deductions from wages may be made under the conditions and within the limits prescribed by national law or determined in a collective agreement or in a decision of an arbitration body.
Based on the provisions of h.1 Article. 137 of the Labor Code of the Russian Federation, deductions from the employee's salary are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws (see the RF IC, Federal Law "On Enforcement Proceedings", Federal Law of May 19, 1995 N 81-FZ "On State Benefits to Citizens having children", Federal Law "On mandatory social insurance in case of temporary disability and in connection with motherhood", Federal Law "On Trade Unions"). Moreover, such deductions can be made both in favor of the employer and in favor of other persons.
So, for example, in accordance with Article 109 of the RF IC, the administration of the organization at the place of work of a person obliged to pay alimony on the basis of a notarized agreement on the payment of alimony or on the basis of a writ of execution must monthly withhold alimony from the salary and (or) other income of the person, obligated to pay child support.
Taking into account the analysis of the current legislation, M. Volkova indicated that deductions from the employee’s salary must be made in the following sequence:
- personal income tax is withheld;
- requirements for enforcement orders are satisfied;
- other deductions are made.
________________
See: Volkova M. Types of deductions from employees' wages // Institutions of culture and art: accounting and taxation. 2012. N 9. P.50.
2. At the same time, part 2 of the commented article defines the grounds for deductions made by decision of the employer to pay off the employee's debt, and contains an exhaustive list of such grounds.
The deduction from the employee's salary is made by the employer to compensate for the unworked advance payment issued to the employee on account of the salary.
Withholding is also made 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.
The letter of the FSS of Russia dated April 14, 2015 N 02-09-11 / 06-5250 contains clarifications on the calculation of insurance premiums in such situations. The FSS of Russia clarifies that funds issued against a report for which an advance report is not submitted by the employee in a timely manner are recognized as the employee's debt to the organization and these amounts can be deducted from the employee's salary. If the employer withheld the above funds from the employee's salary on the basis of the commented article, the object of taxation on insurance premiums does not arise. In the event that the employer decides not to withhold the said amounts, these amounts are treated as payments to employees under labor relations and will be subject to insurance premiums in the generally established manner. If the employee submits an advance report with supporting documents (with copies of sales receipts for the purchase of goods, works (services), invoices, waybills), in the event that the organization has already accrued insurance premiums for the said amount of payments, the organization has the right to recalculate the base for calculating insurance premiums and amounts of accrued and paid insurance premiums.
The employer may make deductions from the employee's wages in order to return the amounts overpaid to the employee due to accounting errors, as well as amounts in the event that the body for consideration of individual labor disputes recognizes the employee's guilt in non-compliance with labor standards or downtime.
Deductions can also be made for unworked vacation days upon dismissal of an employee before the end of the working year in which he has already received annual paid leave.
Deductions for these days are not made if the employee leaves for the following reasons:
- refusal of the employee to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer ();
- liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation);
- reduction in the number or staff of employees of the organization (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
- change of the owner of the property of the organization (this applies to the head of the organization, his deputies and the chief accountant) ();
- conscription of an employee for military service or sending him to an alternative civilian service that replaces it (clause 1, part 1, article 83 of the Labor Code of the Russian Federation);
- reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, part 1, article 83 of the Labor Code of the Russian Federation);
- recognition of an employee as completely disabled in accordance with a medical report (clause 5, part 1, article 83 of the Labor Code of the Russian Federation);
- the death of an employee, as well as his recognition by the court as dead or missing (clause 6, part 1, article 83 of the Labor Code of the Russian Federation);
- the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a body state power the corresponding subject of the Russian Federation (clause 7, part 1, article 83 of the Labor Code of the Russian Federation).
3. The employer has the right to make a decision to withhold from the employee's wages no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments.
In this case, the specified decision by the employer is made in the absence of disagreements with the employee on the grounds and amount of deduction.
Making deductions from the employee's wages to pay off his debts to the employer is a right, not an obligation of the latter.
According to Art. Article 9 of ILO Convention No. 95 prohibits any deduction from wages intended to pay workers directly or indirectly to the employer, his representative or any intermediary (such as a recruiter) in exchange for obtaining or retaining service.
4. Within the meaning of Part 4 of Art. 137 of the Labor Code of the Russian Federation under overpaid salary means a payment that should not have taken place, but actually was made.
Wages overpaid to an employee cannot be recovered from him. This rule applies even if such payment was made due to incorrect application of labor legislation or other regulatory legal acts containing labor law norms.
The exception is when:
- excessive wages accrued due to a calculation error;
- the body for the consideration of individual labor disputes recognized the fault of the employee in non-compliance with labor standards or idle time;
- wages were overpaid to the employee in connection with his illegal actions established by the court.
Provided for Part 4 of Art. 137 of the Labor Code, legal norms are consistent with the provisions of the ILO Convention No. 95 (Article 8), Art. 1 of Protocol N 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, mandatory for application by virtue of Part 4 of Art. 15 of the Constitution of the Russian Federation, art. 10 of the Labor Code of the Russian Federation and contain an exhaustive list of cases when it is allowed to recover from an employee overpaid wages.
Another commentary on Art. 137 of the Labor Code of the Russian Federation
1. Deductions from an employee's wages may be made only in cases stipulated by the Labor Code or other federal laws. The prohibition on deductions, in addition to the cases established by law, ensures the protection of the wages of employees.
2. The content of the commented article corresponds to the provisions of the ILO Convention N 95 "On the protection of wages" (adopted in Geneva on July 1, 1979). Article 8 of that Convention provides that deductions from wages may be made under the conditions and within the limits prescribed by national law or defined in collective agreements or decisions arbitration courts. Workers should be advised of the conditions and limits of such deductions. It is important to emphasize that Russian legislation does not provide for the possibility of deductions from wages on the basis of a collective agreement, since such conditions would worsen the position of the employee in comparison with the law.
No deductions are allowed at the discretion of the employer related to the imposition on the employee of part of the production costs, satisfaction of claims from third parties against the employer or employee without a court decision or the consent of the employee
3. Currently, other codes and federal laws establish the possibility of deductions from wages when levying taxes on personal income, when collecting fines as a criminal punishment, when serving a sentence in the form of corrective labor, when executing court decisions.
4. Deductions for the purpose of levying tax on personal income are made in accordance with the Tax Code. Article 226 of the Tax Code provides that organizations from which the taxpayer receives income are required to calculate, withhold from the taxpayer and pay the amount of the accrued tax on the income of individuals. These deductions must be made directly from the income of the taxpayer when they are actually paid. However, the amount of tax withheld cannot exceed 50% of the amount of the payment.
5. A fine as a criminal punishment is established by a court verdict. In accordance with Art. 31 of the Penal Code, a person sentenced to a fine is obliged to pay it within 30 days from the date the sentence enters into force, or at another time if the court decides on an installment plan. A convicted person who has not paid a fine within the prescribed period is recognized as maliciously evading the payment of a fine, and if the fine is established as an additional type of punishment, the bailiff collects the fine by force (Article 32 of the Penal Code). At the same time, one of the enforcement measures is the foreclosure of wages in accordance with Ch. 12 of the Federal Law of October 2, 2007 N 229-FZ "On Enforcement Proceedings".
6. Deductions by virtue of a court decision are also made when an employee is serving correctional labor as a punishment for a criminal offense. The basis for the production of such deductions is the verdict of the court. In accordance with Art. 40 of the Penal Code, deductions are made from the salary of the convicted person in the amount established by the court verdict. The correct and timely deduction from the wages of the convicted person and the transfer of the amounts of deduction in the prescribed manner are assigned to the employer. The procedure for the production of deductions is established by Art. 44 PEC.
7. Deductions from wages are also possible on the basis of executive documents - writ of execution issued on the basis of a decision, sentence, ruling and decision of courts (judges); settlement agreements approved by the court; court orders, etc. In accordance with Art. 98 of the Federal Law "On Enforcement Proceedings", wages may be levied in the execution of executive documents containing a requirement to collect periodic payments; when recovering amounts not exceeding 10 thousand rubles; in the absence or insufficiency of the debtor's funds and other property to fulfill the requirement of the executive document in full. Writs of execution and other executive documents are sent for collection to the employer.
8. The Labor Code provides for the possibility of deductions from wages to pay off the employee's debt to the employer in the cases specified in Art. 137 of the Labor Code, as well as in order to compensate the employee for property damage caused to the employer.
On the procedure for compensation by the employee of property damage caused to the employer, see Art. 248 of the Labor Code and commentary to it.
9. An employee's debt to the employer may arise as a result of an advance paid to the employee on account of wages or in connection with a business trip or transfer to work in another locality. In the event that the employee has not worked off such an advance or has not used the amount issued in advance for the purposes of a business trip or moving to another area and does not return it voluntarily, its amount may be deducted from the employee's salary.
About the amounts issued to the employee when business trips, see Art. 168 TC and commentary to it.
10. An employer's order to withhold an advance from wages may be made under two conditions: 1) the employee does not dispute the grounds and amounts of deductions; 2) the order is made no later than one month from the date of expiration of the period established for the return of the advance.
The employee's objections to the grounds and amounts of deductions must be expressed in writing. At the same time, he may refer to the illegality or unreasonableness of the return of the indicated amounts, as well as to the incorrect determination of their amounts.
The monthly period starts from the day set for the return of the advance.
When returning an unworked advance payment issued on account of wages, such a period is established by agreement of the parties to the employment contract.
For an advance issued for a business trip, the return period is three working days after the employee returns from a business trip (clause 26 of the Regulations on the Peculiarities of Sending Employees on Business Trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749).
11. Debt to the employer may also arise in the event of payment of excessive amounts to the employee due to a calculation error. Counting error should be understood as an error in arithmetic operations when calculating the amounts payable. An employer's order to withhold from wages amounts overpaid due to a counting error is possible in the absence of a dispute with the employee about the grounds and amounts of these deductions, provided that the order is made within a month from the date of payment of incorrectly calculated amounts. If the employer misses a month, the amounts overpaid to the employee may be recovered in court.
Are not the result of an accounting error and are not subject to reimbursement of amounts overpaid due to incorrect application of legislation on remuneration, a collective agreement, an agreement or an employment contract, as well as errors of an organizational and technical nature (for example, when re-transferring funds to an employee’s bank account ). See also Determination of the Armed Forces of the Russian Federation of January 20, 2012 N 59-B11-17.
12. Amounts overpaid to an employee in the event that the body for consideration of an individual labor dispute recognizes the guilt of the employee in non-fulfillment of production standards or in idle time are subject to withholding.
For wages in case of non-fulfillment of production standards, see Art. 155 of the Labor Code and commentary to it.
For wages during downtime, see Art. 157 of the Labor Code and commentary to it.
13. The sums paid to the employee as payment for vacation are subject to deduction in case of his dismissal before the end of the working year for which the vacation was granted.
For the procedure for granting holidays, see Art. 122 TC and commentary to it.
In case of dismissal of an employee before the expiration of the working year for which the leave is granted, deductions are made at the final settlement with the employee. This rule does not apply when an employee is dismissed on the grounds provided for in paragraph 8 of Art. 77, paragraphs 1, 2, 4 of Art. 81, paragraphs 1, 2, 5 - 7 of Art. 83 TK.
14. Amounts overpaid to an employee in connection with his illegal actions established by the court are subject to withholding. For this type of deduction, the commented article does not provide for special rules. Since the illegality of the employee's actions was established by the court, the amount to be withheld is also established in court. The deduction itself in this case is carried out according to the rules established for deductions on the basis of a court decision.
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New edition Art. 137 of the Labor Code of the Russian Federation
Deductions from the employee's wages are made only in cases provided for by this Code and other federal laws.
Deductions from the employee's salary to pay off his debt to the employer can be made:
to reimburse the unworked advance payment issued to the employee on account of wages;
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;
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 consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this of the Code);
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. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.
In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on deductions from the employee's wages no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction.
counting error;
if the body for the consideration of individual labor disputes has recognized the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);
Commentary on Article 137 of the Labor Code of the Russian Federation
Deductions from wages are made:
1) by virtue of law - income tax and insurance contributions to the Pension Fund;
2) by court decisions - fines imposed in an administrative manner, when serving correctional labor for committing a crime, when compensating for damage caused by the parties to an employment relationship;
3) by order of the employer.
The law establishes that deductions from wages at the initiative of the employer can be made only in expressly provided cases:
1) to compensate for the unworked advance payment issued to the employee on account of wages;
2) to pay off an unused advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;
3) to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee in case of non-compliance with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or downtime due to the fault of the employee (part 3 of article 157 of the Labor Code) code of the Russian Federation);
4) 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. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77 or paragraph 1, 2 or paragraph 4 of part 1 of Art. 81, paragraphs 1, 2, 5, 6 and 7 of Art. 83 of the Labor Code of the Russian Federation.
In all other cases, deductions are made by filing a lawsuit by the employer in court. In the cases listed above (with the exception of the recovery of an unearned advance), the employer may issue an appropriate order no later than one month.
Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in the following cases:
counting error;
if the body for consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or idle time (part 3 of article 157 of the Labor Code of the Russian Federation);
if wages were overpaid to the employee in connection with his illegal actions established by the court.
Another commentary on Art. 137 of the Labor Code of the Russian Federation
1. Article 137 of the Labor Code of the Russian Federation establishes the grounds for deductions from the employee's wages. Deductions can be made only in cases stipulated by the Labor Code or other federal laws. By establishing a ban on deductions, in addition to the cases established by laws, the protection of the wages of employees is ensured.
2. Content of Art. 137 of the Labor Code of the Russian Federation corresponds to the provisions of the ILO Convention N 95 "On the Protection of Wages". Article 8 of the Convention provides that deductions from wages may be made under the conditions and within the limits prescribed by national law or defined in collective agreements or arbitration awards. Workers should be advised of the conditions and limits of such deductions. It is important to emphasize that Russian legislation does not provide for the possibility of deductions from wages on the basis of a collective agreement, since such conditions would worsen the position of the employee in comparison with the law.
Any deductions at the discretion of the employer related to the imposition on the employee of part of the production costs, satisfaction of claims from third parties against the employer or employee without a court decision or the consent of the employee are not allowed.
3. Currently, other codes and federal laws establish the possibility of deductions from wages when levying taxes on personal income, when collecting administrative fines, fines as a criminal punishment, when serving a sentence in the form of corrective labor, when executing court decisions.
4. Deductions for the purpose of levying tax on personal income are made in accordance with the Tax Code. provides that organizations from which the taxpayer receives income are required to calculate, withhold from the taxpayer and pay the amount of the accrued tax on the income of individuals. These deductions must be made directly from the income of the taxpayer when they are actually paid. However, the amount of tax withheld cannot exceed 50% of the amount of the payment.
5. In accordance with Art. 32.2 of the Code of Administrative Offenses of the Russian Federation, an administrative fine must be paid by a person brought to administrative responsibility by depositing or transferring the amount of the fine to a bank or other credit organization. In case of failure to pay an administrative fine on time, a copy of the decision to impose a fine shall be sent by the judge (body official), who issued the decision, to the employer at the place of work held accountable for withholding the amount of the fine from wages.
6. A fine as a criminal punishment is established by a court verdict. In accordance with Art. 31 of the Penal Code of the Russian Federation, a person sentenced to a fine is obliged to pay it within 30 days from the date the sentence enters into force. In case of non-payment of the fine, levy is voluntarily levied on the property of the convict, while if the amount of the fine does not exceed two minimum wages, in the absence of property or insufficiency of property to fully pay off the amount of the fine, levy may be levied on wages. Execution of punishment in the form of a fine is assigned to bailiffs.
7. Deductions by virtue of a court decision are also made when an employee is serving correctional labor as a punishment for a criminal offense. The basis for the production of such deductions is the verdict of the court. In accordance with Art. 40 of the Criminal Executive Code of the Russian Federation, deductions are made from the wages of the convict in the amount established by the court verdict. The correct and timely deduction from the wages of the convicted person and the transfer of the amount of deduction in the prescribed manner is entrusted to the employer. The procedure for the production of deductions is established by Art. 44 PEC.
8. Deductions from wages are also possible on the basis of executive documents - writ of execution issued on the basis of a decision, sentence, ruling and decision of courts (judges); settlement agreements approved by the court; court orders, etc. In accordance with Art. 64 of the Federal Law of July 21, 1997 N 119-FZ (as amended on November 3, 2006) "On Enforcement Proceedings", wages may be levied: when collecting periodic payments; when recovering amounts not exceeding two minimum wages; in the absence of the debtor's property, which can be levied. Writs of execution and other executive documents are sent to the employer for recovery.
9. In Labor Code provides for the possibility of deductions from wages to pay off the employee's debt to the employer in the cases specified in Art. 137 of the Labor Code, as well as in order to compensate the employee for property damage caused to the employer.
On the procedure for compensation by the employee of property damage caused to the employer, see Art. 248 of the Labor Code of the Russian Federation and commentary to it.
10. An employee's debt to the employer may arise as a result of the issuance of an advance payment to the employee on account of wages or in connection with a business trip or transfer to work in another locality. In the event that the employee has not worked off such an advance or has not used the amount issued in advance for the purposes of a business trip or moving to another area and does not return it voluntarily, its amount may be deducted from the employee's salary.
For amounts issued to an employee on business trips, see Art. 168 of the Labor Code of the Russian Federation and commentary to it.
11. An employer's order to withhold an advance from wages can be made under two conditions:
The employee does not dispute the grounds and amounts of deductions;
The order is made no later than one month from the date of expiration of the period established for the return of the advance.
12. The employee's objections to the grounds and amounts of deductions must be expressed in writing. At the same time, he may refer to the illegality or unreasonableness of the return of the indicated amounts, as well as to the incorrect determination of their amounts.
13. The course of the one-month period starts from the day set for the return of the advance.
When returning an unworked advance payment issued on account of wages, such a period is established by agreement of the parties to the employment contract.
For an advance issued for a business trip, the return period is three days after the employee returns from a business trip (clause 19 of the Instruction on business trips, approved by the Decree of the USSR Ministry of Finance, the USSR State Labor Committee and the All-Union Central Council of Trade Unions of April 7, 1988 (Bulletin of the USSR State Labor Committee. 1988 .N 8)).
14. Debt to the employer may also arise in the event of payment of excessive amounts to the employee due to a counting error. Counting error should be understood as an error in arithmetic operations when calculating the amounts payable. An employer's order to withhold from wages amounts overpaid due to a counting error is possible in the absence of a dispute with the employee about the grounds and amounts of these deductions, provided that the order is made within a month from the date of payment of incorrectly calculated amounts. If the employer misses a month, the amounts overpaid to the employee may be recovered in court.
Are not the result of a counting error and are not refundable for amounts overpaid due to the misapplication of pay legislation, a collective agreement, agreement or employment contract.
15. Amounts overpaid to an employee in the event that the body for consideration of an individual labor dispute recognizes the employee's guilt in non-fulfillment of production standards or in idle time are subject to withholding.
For wages in case of non-fulfillment of production standards, see Art. 155 of the Labor Code of the Russian Federation and commentary to it.
For wages during downtime, see Art. 157 of the Labor Code of the Russian Federation and commentary to it.
16. The amounts paid to the employee as payment for vacation are subject to deduction in case of his dismissal before the end of the working year for which the vacation was granted.
For the procedure for granting holidays, see her.
In case of dismissal of an employee before the expiration of the working year for which the leave is granted, deductions are made at the final settlement with the employee. This rule does not apply when an employee is dismissed for the following reasons:
If the employee refuses to be transferred to another job, which is necessary for him in accordance with the medical certificate issued in the prescribed manner (clause 8 of article 77 of the Labor Code of the Russian Federation);
In connection with the liquidation of the organization or the termination of activities by the employer - an individual (clause 1 of article 81 of the Labor Code of the Russian Federation);
In connection with a reduction in the number or staff of employees (clause 2 of article 81 of the Labor Code of the Russian Federation);
In relation to the head of the organization, his deputies and the chief accountant - in connection with a change in the owner of the organization's property (clause 4, article 81 of the Labor Code of the Russian Federation);
In connection with the conscription of an employee for military service or sending him to an alternative civilian service that replaces it (clause 1, article 83 of the Labor Code of the Russian Federation);
In connection with the reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);
In connection with the recognition of an employee as completely disabled in accordance with a medical report (clause 5, article 83 of the Labor Code of the Russian Federation);
In connection with the death of an employee or employer - individual, as well as recognition by the court of an employee or employer - an individual as dead or missing (clause 6 of article 83 of the Labor Code of the Russian Federation);
In connection with the onset of emergency circumstances that prevent the continuation of labor relations (clause 7, article 83 of the Labor Code of the Russian Federation).
17. The amounts overpaid to the employee in connection with his illegal actions established by the court are subject to deduction. For this type of deduction, Art. 137 of the Labor Code of the Russian Federation does not provide for special rules. Since the illegality of the employee's actions was established by the court, the amount to be withheld is also established in court. The deduction itself in this case is carried out according to the rules established for deductions on the basis of a court decision.
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