How much can be deducted from salary for damage. Does the employer have the right to deduct damage from the employee's wages - restrictions and samples of documents. Compensation for damage on the will of the employee

Deductions from wages initiated by the employer are possible for:

• unearned advance paid against salary;
• unspent and timely unpaid amounts issued on account of the transfer to work in another locality, etc .;
• overpaid wages and other amounts overpaid to an employee in connection with a counting error or when proving his guilt in idle time or failure to comply 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 (for temporary disability and maternity benefits), overpaid in the event of an accounting error (for example, when calculating earnings for the period, an arithmetic error was made) or employee misconduct (for example, an employee hid information affecting the amount of the benefit).

Such cases of deductions initiated by the administration are listed in article 137 Labor Code RF and part 4 of article 15 of the Law of December 29, 2006 No. 255-FZ.

Here the question may arise: what is a counting error? If you used the wrong algorithm for calculating benefits or vacation pay, such a counting error is not recognized. In particular, the amount of temporary disability benefit accrued in a larger amount due to the fact that the length of service was incorrectly calculated cannot be recovered from the employee. But if an arithmetic error was made in the calculation (for example, a subtraction was made instead of addition), then you can keep the excess. This is just a counting error.

Also, the material damage caused to the organization can be withheld from the employee's earnings. The basis here will be Articles 238 and 240 of the Labor Code of the Russian Federation. But remember: in this case, only the amount of direct actual damage is reimbursed, the employee does not pay for the lost organization (Article 238 of the Labor Code of the Russian Federation). So, if, for example, an employee broke the machine, then you can only recover from him the cost of repairs and spare parts. He is not obliged to compensate for the cost of products that were not made during the repair of the equipment.

The employee does not bear material 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.

Situation: is it possible to withhold from the employee's salary a fine for violation of the internal labor regulations

No. There is no such thing as a fine in the Labor Code of the Russian Federation. The legislation gives the organization the right to materially punish an employee for causing material damage (Article 238 of the Labor Code of the Russian Federation). An employee cannot be fined for violation of the internal labor regulations.

For such a misconduct, an employee can be brought to disciplinary responsibility (Article 192 of the Labor Code of the Russian Federation). For example, reprimand or reprimand. As a last resort, if the employee does not systematically comply with the work schedule, he can be fired.

Attention!

For withholding from wages amounts not provided for by the Labor Code of the Russian Federation, the organization bears administrative responsibility under Article 5.27 of the Code of the Russian Federation on Administrative Offenses as for violation of labor legislation.

How retention

To withhold any amount from an employee's salary, the organization must issue an order.

The order must be issued within a month from the date of the expiration of the term, to return the advance, repay the debt or incorrectly calculated payments. An exception is the collection from the quitting employee of the amounts accrued for unworked vacation days. There is no monthly period for withholding these amounts.

This procedure is spelled out in article 137 of the Labor Code of the Russian Federation.

Example

The manager of LLC "Alpha" Kondratyev A.S. was paid a salary in the amount of 37,000 rubles.

From this amount, the employee must pay:

Membership fees - 100 rubles;

Accountable amounts not returned in time (advance payment for a business trip) - 1000 rubles;

Payments in repayment for the purchase of goods - 5,000 rubles.

On the initiative of the administration, only 1000 rubles can be withheld from Kondratyev's salary. arrears of accountable amounts.

The organization can make the rest of the deductions only at the initiative of the employee himself (at his request).

To withhold amounts to pay off material damage caused to the organization, the head must also issue an order within a month. This period is counted from the day when the commission establishes the amount of material losses. This is established by article 248 of the Labor Code of the Russian Federation.

If the employee does not agree with the grounds and amount of the withholding, then the organization will have to go to court to recover the missing amounts (Articles 137, 248 and 391 of the Labor Code of the Russian Federation, Article 11 of the Civil Code of the Russian Federation). You will have to go to court even if, within a month allotted by the Labor Code of the Russian Federation, the head did not issue a retention order.

What is the limit for the total amount of deductions

The amount of material damage that is recovered from the employee depends on what kind of liability is provided for him: full or limited. With limited liability, the employee is obliged to compensate for damage in an amount not exceeding his average salary (Article 241 of the Labor Code of the Russian Federation).

At the same time, the specific procedure for its calculation for such cases is not defined. This means that general rules should be used. Clause 4 of Regulation No. 922 establishes that it is necessary to calculate the average earnings on the basis of the actually accrued wages and the actual hours worked for the previous 12 calendar months. In this case, the previous month in which the employee caused the damage.

That is, the total salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days or hours according to the employee's schedule in the month in which he caused the damage.

Yes, in this case, the average earnings will depend on the month of calculation. However, there is no reason to simply divide the annual earnings into 12 reasons.

Example

In August 2015, through the fault of an employee of the organization, Nabokov A.S., the server went out of order. The amount of material damage is estimated at 25,200 rubles.

An agreement on full liability with the employee has not been concluded, which means that no more than an average monthly salary can be collected from him. The accountant counted it like this.

The employee works on the usual five-day basis. The settlement period is from August 1, 2014 to July 31, 2015, the employee worked in them 220 working days.

The salary for these days was 388,904.15 rubles.

There are 21 working days in August 2015. Hence the amount of average monthly earnings will be:

RUB 388,904.15 : 220 days. × 21 days = 37 122.67 rubles.

This means that the entire amount of damage caused to him can be collected from the employee, that is, 25,200 rubles.

With full financial responsibility, the employee is obliged to reimburse the entire amount of damage caused (Article 242 of the Labor Code of the Russian Federation). At the same time, Article 137 of the Labor Code of the Russian Federation does not impose any restrictions on the amount of penalties.

Full material liability the employee occurs in two cases.

Firstly, in situations provided for by Article 243 of the Labor Code of the Russian Federation. For example, when a shortage of values ​​entrusted to an employee is discovered, if the employee caused damage due to an administrative violation (for example, an accident), etc. In this case, it does not matter whether the employee has a full liability agreement or not, he must compensate for the damage fully.

Example

The driver of the organization, Kolesov Yu. I. became the culprit in the road accident. The insurance company paid out the insurance indemnity to the injured party.

The damage caused to the organization's car is recovered from Kolesov. The amount of damage caused is 45,000 rubles.

With an employee not about full financial responsibility. Nevertheless, regardless of Kolesov's average salary, the organization can recover from him the entire amount of damage caused - 45,000 rubles.

Secondly, in situations when an agreement on full liability has been concluded with an employee. Such an agreement must be concluded with employees whose positions are listed in Appendix 1 to the Resolution of the Ministry of Labor of Russia No. 85 dated December 31, 2002.

In particular, these are cashiers, storekeepers, etc. The standard form of the contract is given in Appendix 2 to the Resolution of the Ministry of Labor of Russia No. 85 dated December 31, 2002.

Example

The organization revealed a shortage of money at the cash desk in the amount of 12,000 rubles. organization found that the cashier A. V. Dezhneva absent from her workplace, leaving the cash register unlocked.

An agreement on full liability has been concluded with the employee.

The organization has the right to recover from Dezhneva the entire amount of the damage caused - 12,000 rubles.

In some cases, liability may be provided for in an employment contract with an employee. This is allowed in relation to the deputy heads of the organization and the chief (Article 243 of the Labor Code of the Russian Federation).

At the same time, the head of the organization (unlike his deputies) bears full financial responsibility, regardless of whether it is spelled out in the employment contract with him or not (Article 277 of the Labor Code of the Russian Federation).

You can recover the full amount of damage from an employee under the age of 18 only if he:

• deliberately harmed the organization;
• caused damage while intoxicated;
• caused damage as a result of a crime or administrative violation.

Such cases are listed in article 242 of the Labor Code of the Russian Federation. At the same time, it is not necessary to conclude an agreement with an employee on full liability.

Situation: is it possible to withhold from an employee the cost of lost property issued against receipt

Yes, you can.

Labor legislation makes it possible to recover damages from an employee in the event of a shortage of values ​​entrusted to him according to a one-time document (clause 2, part 1 of article 243 of the Labor Code of the Russian Federation). Such a document can be a receipt. There is no standard form for a receipt, so it can be drawn up in any form. For the loss of property received against receipt, the employee bears full financial responsibility.

How much can you hold

No more than 20 percent can be withheld from each employee's salary. This is the rule spelled out in Article 138 of the Labor Code of the Russian Federation. If the employee's monthly salary was not enough to pay off the entire amount of the debt, keep the balance in the next months.

Situation: from what amount of earnings - before or after withholding personal income tax - to calculate the maximum amount of withholding at the initiative of the organization

Determine the maximum amount of deductions by first reducing the employee's salary by the amount of personal income tax. According to article 138 of the Labor Code of the Russian Federation, the maximum amount of deductions must be calculated based on the income due to the employee. And the employee is entitled to income reduced by the amount of personal income tax.

Example

In April, through the fault of an employee of the organization, A. S. Kondratyev, the printer went out of order. An agreement on full liability with the employee has not been concluded. The amount of material damage is estimated at 12,000 rubles.

Kondratyev's salary is 15,000 rubles. His average monthly salary is 16,000 rubles. Therefore, the organization can recover from the employee the entire amount of damage caused - 12,000 rubles.

Standard tax deductions the employee is not provided.

The amount of personal income tax for April is 1950 rubles. (RUB 15,000 × 13%).

The maximum deduction for April is:

(15,000 rubles - 1950 rubles) × 20% = 2,610 rubles.

Since this amount is less than the damage caused by Kondratyev, the accountant withheld only 2610 rubles from his salary for April. The remaining 9390 rubles. (12,000 - 2610) will be deducted from the employee's salary in the following months.

Situation: how to withhold debt from an employee who leaves. Holds are made at the initiative of the organization

And in this case, you have the right to withhold no more than 20 percent from the employee's last salary. The judges also agree with this (see the decision of the regional court of June 24, 2010 in case No. 21-103).

What about a situation when the last payment is not enough to pay off the debt? It all depends on the specific situation. If we are talking about overpaid vacation pay, then all that remains is to offer the employee to voluntarily pay off the debt. And if he refuses (which is also possible), the debt will have to be forgiven. The fact is that there is no reason to consider the arising vacation debt as unjust enrichment. After all, this can only be brought up in case of bad faith on the part of the employee or a counting error. This follows from paragraph 3 of Article 1109 of the Civil Code of the Russian Federation.

Here are examples of cases decided in favor of employees - the rulings of the Moscow Regional Court dated December 15, 2011 in case No. 33-25971 and the Moscow City Court dated August 8, 2011 in case No. 33-2316.

If we are talking about material damage, then just agree with the now former employee how he will repay the remaining amount of the debt to you. The same applies to outstanding amounts due. Does the employee refuse to repay the debt? This means that you will have to go to court.

The maximum amount of deductions increases to 50 percent of the salary on hand if you withhold money from the employee's income according to executive documents. Moreover, if at the same time you collect something on your own initiative, the total amount of deductions should also not exceed 50 percent (letter from Rostrud dated May 30, 2012 No. PG / 3890-6-1). The maximum amount of deductions can reach 70 percent of earnings if, according to executive documents, the employee must pay (Article 138 of the Labor Code of the Russian Federation):

• compensation for harm caused to health;
• compensation for damage to persons who have lost their breadwinner, or caused by a crime;
• alimony for minor children.

But keep in mind: your share of retention in any case cannot be more than 20 percent.

In this case, the requirements of executive documents are mandatory. Compared to administration-initiated deductions, they need to be satisfied in the first place. This means that the employee's debt to the organization can be withheld from his income only after all obligations under the writ of execution have been paid off.

It turns out that if, according to the writ of execution, it is necessary to withhold, for example, 30 percent of the salary, it will no longer be possible to collect the employee's debt to the company itself (Rostrud letter dated May 30, 2012 No. PG / 3890-6-1).

The fact is that withholding from wages, for example, amounts overpaid to an employee due to an accounting error, is not an exceptional case provided for in part 3 of Article 138 of the Labor Code of the Russian Federation, when up to 70 percent of earnings can be collected.

Example

In April, the organization received a writ of execution for the collection of 6,000 rubles from the employee of A.S. Kondratyev. to reimburse the outstanding loan. In addition, at the beginning of April, the employee had an unreturned and unconfirmed advance payment issued for travel expenses in the amount of 2,000 rubles.

Kondratyev's monthly salary is 18,000 rubles. Standard tax deductions are not provided to an employee.

The amount of personal income tax for April is 2340 rubles. (RUB 18,000 × 13%).

The maximum deduction for April is:

(18,000 rubles - 2340 rubles) × 50% = 7830 rubles.

In return for the outstanding loan, the accountant withheld 6,000 rubles from Kondratyev's salary.

At the initiative of the administration, 3132 rubles can be withheld from the employee's salary. (15 660 rubles. × 20%). However, the employee has already been withheld large sum(6000 rubles). Therefore, in April, the accountant will not be able to withhold anything on account of the debt to the organization.

Thus, the amount of the non-refunded advance in the amount of 2,000 rubles. will be deducted from the employee's income only in the next month.

At the same time, at the request of the employee, the company has the right to withhold any amount from his salary (letter from Rostrud dated September 16, 2012 No. PR / 7156-6-1). Therefore, you can ask the employee to express in writing their consent to withhold their debt to the organization.

If he agrees to this, then the company will be able to collect money according to the writ of execution and withhold from the employee his debt to the company.

Example

In September, through the fault of A.S. Neverov, an employee of the organization. the printer is out of order. The amount of damage amounted to 12,000 rubles. In this case, you can collect from the employee no more than his average monthly earnings. Let's assume that its size was 37,122.67 rubles. Thus, the organization can recover from the employee the entire amount of damage caused - 12,000 rubles. Neverov's salary is 30,000 rubles. He does not qualify for standard tax deductions.

At the same time, in early September, the company received a writ of execution against the same employee to pay alimony in the amount of 25 percent of his earnings. The company is obliged to satisfy this requirement in the first place. Therefore, in order to withhold the amount of damage from the employee, the company obtained his written consent. At the same time, in his statement, Neverov indicated that he was asking to keep no more than 50 percent of his salary in his hands.

For the first half of the month, the company pays an advance in the amount of 50 percent of the salary. The employee was paid 15,000 rubles. (30,000 rubles × 50%). On account of the payment of alimony, the accountant withheld 3,750 rubles. (15,000 rubles × 25%). And the same amount - for damages.

At the end of the month, the amount of personal income tax amounted to 3900 rubles. (RUB 30,000 × 13%).

The following amount may be withheld from the salary for the second half of the month in order to pay alimony:

(30,000 rubles - 3,900 rubles - 15,000 rubles) × 25% = 2,775 rubles.

And the same amount for damages.

Thus, the accountant withheld only 13,050 rubles from the employee's salary for September. (3750 × 2 + 2775 × 2), including 6525 rubles. (3750 + 2775) for damages. Remaining 5475 rubles. (12,000 - 6525) will be withheld from the employee's salary in October.

What are the rules to withhold material damage

Withhold the amount of material damage from the employee's income in this order. First, calculate your total loss, which includes:

• the amount of material damage;
• the cost of acquiring or restoring property (for example, repairs);
• expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident in the part not covered by insurance compensation).

The composition of the losses that the employee who caused the organization material damage is obliged to compensate is specified in article 238 of the Labor Code of the Russian Federation.

Situation: who will compensate for the damage in the event of an accident, the culprit of which is an employee of the organization

Damage in an accident that an employee inflicted on third parties (in excess of compensation for compulsory motor third party liability insurance), compensate at the expense of the organization (Article 1068 of the Civil Code of the Russian Federation). In this case, the employee who caused the damage is obliged to compensate for such expenses in full (subparagraph 6, part 1 of article 243 of the Labor Code of the Russian Federation).

The employee must reimburse:

• the amount that the organization transferred to the injured party in excess of the indemnity under the compulsory motor third party liability insurance;
• the cost of repairing the organization's car (if the organization did not enter into a voluntary property insurance contract or the insurance did not fully cover the repair costs).

However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused to him (Article 240 of the Labor Code of the Russian Federation).

To confirm the amount of material damage in the organization, you can create a special commission (Article 247 of the Labor Code of the Russian Federation). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing the facts of theft or abuse, as well as damage to valuables. Indeed, in these cases, an inventory is required, and for this an inventory commission must be created. Indicate the identified shortage (cost of losses) in the collation sheet (standard forms No. INV-18 or No. INV-19).

If the amount of material damage can be established on the basis of documents received from counterparties, the commission may not be created.

For example, in the event of an accident due to the fault of an employee, the amount of material damage can be established according to documents received from insurance and repair companies.

Determine the amount of damage at market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.). At the same time, the damage cannot be assessed below the value of the property according to accounting data (taking into account wear and tear). When determining the damage, do not take into account the actual losses within the limits of the norms of natural loss. This procedure is established by article 246 of the Labor Code of the Russian Federation.

After determining the amount of damage, take from the employee a written explanation of the reasons why it occurred. If the employee refuses to do this, then draw up an act. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.

To recover the amount of damage from the guilty employee, the head of the organization must issue a retention order. The order must be issued no later than a month after the commission establishes the amount of damage.

On the basis of the order, withhold the cost of damage from the employee's income that does not exceed his average monthly earnings. Taking into account this rule, it is necessary to recover damage both in cases where the employee bears limited financial liability, and in cases where financial liability occurs in the full amount of damage.

Situation: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from the employee's income

The legislation does not provide for a special methodology for calculating the average monthly earnings in this case. For all cases of maintaining the average earnings, a unified procedure for its calculation has been established based on the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it.

The various names that were used in determining the amount of payments cannot serve as a basis for using any other order.

The cost of damage withheld from the employee's income should not exceed his average monthly earnings (part 1 of article 248 of the Labor Code of the Russian Federation). In this case, the average monthly earnings should be calculated on the basis of the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, paragraphs 9 and 13 of the Regulation approved by the Government of the Russian Federation dated December 24, 2007 No. 922).

Recall that no more than 20 percent can be withheld from an employee's monthly salary. Therefore, you will most likely have to recover the amount of material damage in the amount of the average salary within a few months.

The amount of damage in excess of the average monthly salary can be received from the employee only through the court (if he is fully financially liable). At the same time, the employee can voluntarily reimburse the amount of damage. In this case, by agreement of the parties, compensation for damage with payment by installments is allowed.

This procedure for recovering damage is established by Article 248 of the Labor Code of the Russian Federation.

An employee can:

• deposit the required amount to the cashier;
• with the consent of the organization, provide it with property equivalent to the damaged one (fix the damaged property).

If the employee refused to voluntarily compensate for the damage or did not agree with his assessment, then you will have to go to court to pay off the loss.

You will have to go to the court even if the order of retention was issued later than a month after the determination of the amount of damage (Article 248 of the Labor Code of the Russian Federation).

At the same time, the organization has the right to completely or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).

As of: 02.04.2007
Magazine: Handbook of a personnel officer
Year: 2007
Author: Bondarenko Elvira Nikolaevna
Topic: Limited liability of the employee, Full liability
Heading: Personnel practice

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

Establishing such a seemingly strict obligation of the employee to the employer, especially considering their inequality in property, the legislator, nevertheless, considered it possible in a certain sense to alleviate the situation of the employee, despite the offense he committed. So, as a general rule, the employee is obliged to compensate the employer only for direct actual damage. Unearned income (lost profits) are not collected from him (Article 238 of the Labor Code of the Russian Federation). There are also a number of statutory provisions that are sparing for the employee.

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

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

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

Carrying out an inspection is a prerequisite for the material responsibility of the employee. In addition, the employer is obliged to request a written explanation from the employee. This is done in order to find out the cause of the damage and thereby determine the fault of the employee. If the employee evades giving an explanation, an appropriate act is drawn up.

compensation options

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

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

Voluntary compensation by an employee of damage- full or partial - possible only with the consent of the employer. The employee either, with the consent of the employer, fixes the damaged property, or transfers an equivalent amount, or pays an adequate amount of money to the employer's cashier. Article 248 of the Labor Code of the Russian Federation allows compensation for damage by installments, but only by agreement with the employer. In this case, the employee undertakes in writing to make the agreed amount of money at a certain frequency, repaying the debt by the date specified by the parties. If the employee does not fulfill his obligation or leaves, the debt is collected in court.

Procedure for recovering damage from a guilty employee by order of the employer provided for by Art. 248 of the Labor Code of the Russian Federation. Withholding certain amounts from the employee's salary, the employer must comply with certain conditions.

First of all, in this order, damage can be recovered that does not exceed the employee's average earnings. That is, if the employee bears limited financial liability, exactly this procedure applies, unless, of course, the damage is compensated voluntarily. But even in the case of full financial liability, if the amount of damage caused is not more than the average earnings, it can be recovered under Art. 248 of the Labor Code of the Russian Federation. Thus, to determine the procedure for compensating the employee for damage what matters is not the type of liability, but the amount of damage caused.

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

Finally, a withholding order is given to an employee who continues to work for the employer. The fact is that the very fact of causing damage is not a reason for terminating an employment contract at the initiative of the employer; for this, you also need a decision of the competent authority (see, for example, subparagraph "g" of clause 6 of article 81 of the Labor Code of the Russian Federation). At the same time, the employee who caused the damage has the right to quit according to on their own... Then the employer goes to court for damages.

If the employer fails to comply with the conditions for recovery of damage (namely, if the monthly period during which a retention order can be made, or an amount exceeding the average monthly earnings is collected), the employee has the right to go to court, and, as follows from Part 2 Art. 248 of the Labor Code of the Russian Federation, bypassing the labor dispute commission.

Note!

Average earnings are calculated according to the rules of Art. 139 of the Labor Code of the Russian Federation as amended by the Federal Law of 30.06.06 No. 90-FZ. In the part that does not contradict the Labor Code of the Russian Federation, the Regulation on the specifics of the procedure for calculating the average wage, approved. Decree of the Government of the Russian Federation of 11.04.03 No. 213

Foreclosure cannot be levied on sums of money paid:
1) in compensation for harm caused to health, as well as in compensation for harm to persons who have suffered damage as a result of the death of the breadwinner;
2) persons who have received injuries (injuries, trauma, contusion) in the performance of their official duties, and members of their families in the event of death (death) of these persons;
3) in connection with the birth of a child; mothers with many children; single father or mother; for the maintenance of minor children during the search for their parents; to retirees and disabled people of the 1st group to care for them; to victims for additional food, sanatorium treatment, prosthetics and costs of caring for them in case of harm to health; on alimony obligations;
4) for work with harmful conditions labor or in extreme situations, as well as citizens exposed to radiation as a result of disasters or accidents at nuclear power plants, and in other cases established by the legislation of the Russian Federation;
5) organization in connection with the birth of a child, with the death of relatives, with the registration of marriage, as well as severance pay payable upon dismissal of an employee (Article 69 of the Federal Law of 21.07.97 No. 119-FZ "On Enforcement Proceedings"; hereinafter - the Law on Enforcement Proceedings).

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

Note!

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

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

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

. indisputable deduction from wages

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

An indisputable order is provided for withholding the damage caused, but, as mentioned above, with certain conditions. In the case of reimbursement of an unused advance paid to an employee on account of wages (paragraph 1 of part 2 of article 137 of the Labor Code of the Russian Federation), the retention period is not established. What is considered the maturity of the debt (repayment of the advance) in this case? After all, it is not supposed to return this advance, so to speak, in kind, but to work it off.

The term in this case is determined by the situation itself: the employee is given an advance against his salary, for example, for the current month. The month has been worked out - it means that the debt has been paid off. Hence, deadline to carry out the deduction, it is necessary to count from the day of the end of the month for which the salary will be calculated.

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

Note that the provision of Art. 137 of the Labor Code of the Russian Federation is interpreted by some experts as a requirement of the employer to inform the employee that retention will be made on such and such a basis and in such and such an amount (that is, in fact, ask his consent).

Absence in art. 137 of the Labor Code of the Russian Federation of instructions on the need to obtain the written consent of the employee suggests that the employee is not considered to dispute the retention until he notifies the employer.

recovery of damage under certain conditions

V following cases although deductions are made, but with the observance of a monthly period and provided that the employee does not dispute their basis and amount:
1) to repay an unspent and timely not returned advance payment issued in connection with business trip or transfer to another job in another locality, as well as in other cases. If the employee does not report for the business trip in a timely manner, within three days, the accountable amounts may be withheld from him. However, in the event that the employee pays off the debt (even if the term is violated), the employer is obliged to reimburse them;
2) for the return of amounts overpaid to the employee due to counting errors, as well as amounts overpaid to the employee, if the body for consideration of individual labor disputes recognizes the employee's guilt in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or simple (part 3 Article 157 of the Labor Code of the Russian Federation). Counting is understood as an arithmetic error;
3) upon dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation, for unworked vacation days. Withholding for these days is not made if the employee is dismissed on the grounds provided for in clause 8 of part 1 of Art. 77 or pp. 1, 2 or 4 h. 1 tbsp. 81, pp. 1, 2, 5, 6 and 7 st. 83 of the Labor Code of the Russian Federation. The employer's right to apply to the court in this case does not contain either the Labor Code of the Russian Federation (Article 391), or the Rules on regular and additional vacations (clause 2), approved by the NCT of the USSR on April 30, 30, No. 169 and acting in a part that does not contradict the Labor Code of the Russian Federation. However, in paragraph 1 of Art. 3 of the Code of Civil Procedure of the Russian Federation states that the person concerned has the right to apply to the court for the protection of violated or disputed rights, freedoms or legitimate interests. Finally, Art. 8 of the Constitution of the Russian Federation establishes equal protection for all forms of ownership;
4) if the salary was paid to the employee in excess in connection with his illegal actions established by the court. In this case, it does not matter whether the employee is brought to any kind of legal liability.

deduction limits

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

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

Note!

When deducting from wages under several executive documents, the employee must, in any case, retain 50% of wages

According to Art. 66 of the Law on Enforcement Proceedings, deductions from wages and other types of income of the debtor are made to a limited extent in the following cases:
1. When executing the court order of the debtor, no more than 50% of the wages and payments and disbursements equivalent to it may be withheld until the full repayment of the amounts recovered.
2. When deducting from wages and equivalent payments and disbursements under several executive documents, the employee must retain 50% of the wages.
3. Limitations on the amount of deduction from wages and payments and benefits equivalent to it, established by paragraphs. 1 and 2 of this article shall not apply when collecting 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 from wages and equivalent payments and disbursements may not exceed 70%.
4. The rules established by this article also apply to the acquisition of a claim on scholarships, pensions, remuneration due to the debtor for the use by the author of his copyright, the right to discovery, invention for which copyright certificates have been issued, as well as for rationalization proposal and the industrial design for which the certificates have been issued.

The employer wants to deduct part of the amount from the official salary of the Employee, due to the damage caused by the latter. You need information about the procedure for withholding and the necessary documents.

Answer

M.A. Kokurina, lawyer

How to recover damages from an employee when the company's losses are the work of his hands

Troubles are unpredictable, they can happen even in a well-oiled workflow. The driver got into an accident in a service car, the machine burned out due to improper operation, the goods were taken out of the warehouse while the guards were basking in the arms of Morpheus. Or potential clients did not dare to work with you, because your employee on a business trip undermined the company's image by showing up at their place while intoxicated.

In all such situations, the management of the company has one desire - to compensate for the losses incurred through the fault of the employee. But is this always possible, and if so, how should we proceed so that, in principle, it would be possible to bring an employee to financial responsibility and receive compensation for damage from him?

Be that as it may, keep in mind that the participation of an accountant in a "financially responsible" procedure, most likely, will not be limited only to the calculation of inventory shortages or losses from damage to property. h. 3 tbsp. 11, part 1 of Art. 30 of the Law of 06.12.2011 No. 402-FZ; p. 27 of the Regulations, approved. By order of the Ministry of Finance dated July 29, 1998 No. 34n... Surely you will have to participate in an official investigation, prepare various accounting papers for signature by the management, and generally suggest what other formalities must be followed to recover damage from the culprit.

We confirm the amount of damage caused to the company and the fault of the employee

In order to have time to recover from the guilty damage by order of the head (that is, without a court decision), to register all required documents you have only 1 month from the date of the final determination of the amount of damage a Art. 248 of the Labor Code of the Russian Federation... And as this date, it is safer to take the day of completion of the inventory or inspection of the damaged property.

We create a commission for an internal investigation

Such the commission is needed to establish and confirm two things:

• the exact amount of damage. Keep in mind that the amount of damage can only be calculated based on the book (residual for fixed assets) value and Art. 246 of the Labor Code of the Russian Federation... The fact is that when calculating damage at market prices, you collect lost profits from the employee, and this is illegal about Art. 277 of the Labor Code of the Russian Federation; Clause 9 of the Resolution of the Plenum of the Armed Forces dated November 16, 2006 No. 52 (hereinafter - Resolution No. 52)... Let's say the goods are stolen. When determining the amount of damage, their purchase price must be taken into account. If you calculate damages at the sales price, this will result in the recovery of both direct damages and loss of profits from the employee. And in a situation where, due to a drunken employee of your company, the counterparties refused to conclude an agreement with you, it will not work to recover the damage from the employee, because such a refusal is a lost profit of the companies clause 2 of Art. 15 of the Civil Code of the Russian Federation;
• the possibility of bringing a specific employee to liability. For this, the following five conditions must be met simultaneously Art. 233 of the Labor Code of the Russian Federation; Clause 4 of Resolution No. 52.

CONDITION 1. Causing direct actual damage to the property of the company. This means that the employer has Art. 238 of the Labor Code of the Russian Federation:

• <или>the amount of property has decreased;
• <или>the condition of the property has worsened;
• <или>there was a need to spend money on the acquisition, restoration of property or to compensate for damage caused by the employee to third parties.

CONDITION 2. The unlawfulness of the employee's behavior, that is, his failure to fulfill his labor duties Clause 4 of Resolution No. 52... For example, an employee violated the internal labor regulations, terms of an employment contract, provisions job description, with which he was familiarized with signature.

Attention

If at least one of the conditions for bringing an employee to financial responsibility is not met, not a penny cannot be collected from him for the damage caused to him. Appellate rulings of the Vologda Regional Court dated 17.04.2013 No. 33-1755 / 2013; Khabarovsk Regional Court dated 09.21.2012 No. 33-5957 / 2012.

CONDITION 3. A causal relationship between employee behavior and the resulting damage. That is, it is necessary to prove that the damage arose precisely as a result of the unlawful behavior of the employee, and not for any other reasons. Suppose, as a result of the investigation, the commission found out that the storekeeper did not check the alarm connection in the warehouse. Wherein:

• <если>it was turned off and theft occurred, then there is a causal relationship;
• <если>it was turned on, but the theft still happened, then there is no causal relationship between the employee's behavior and the damage that occurred.

CONDITION 4. The employee is at fault for causing damage. Guilt can manifest itself in two forms x clause 3 of Art. 243 of the Labor Code of the Russian Federation:

• <или>intent. That is, the employee:

• realized the illegal nature of his behavior;
• foresaw that his behavior could cause property damage;
• wished / deliberately allowed such consequences to occur;

• <или> carelessness. In other words, the employee was aware of the illegal nature of his behavior and at the same time:
  • <или>foresaw the possibility of harmful consequences, but counted on their prevention without sufficient grounds;
  • <или>did not foresee the possibility of harmful consequences, although he should and could have foreseen.

CONDITION 5. The absence of circumstances precluding the employee's responsibility. There are only four such circumstances. Art. 239 of the Labor Code of the Russian Federation... If in the course of the investigation at least one of them is revealed, the employee cannot be held liable and damages cannot be recovered from him.

Even if the culprit confirms in writing his readiness to pay the company compensation for damage, advise the manager not to refuse to carry out official investigation... It is the responsibility of the employer I Art. 247 of the Labor Code of the Russian Federation, without which the employee will subsequently be able to challenge in court the bringing to financial responsibility and achieve recognition of voluntary compensation for damage to illegal Appellate ruling of the Belgorod Regional Court dated 04.12.2012 No. 33-3846.

How many people should be included in the service commission and who exactly it should be is not established by law. Therefore, the manager independently decides who is needed when investigating the causes of damage. It can be:

• company employees;
• specialists performing specific duties under a civil contract. Suppose you do not have an expert on staff who could establish the exact reasons for the breakdown. Then you invite a specialist by concluding an agreement with him for the provision of consulting services;
• strangers who are ready to participate in the investigation. For example, due to the fault of the seller in the store, an emergency fire alarm, the goods were damaged. At that time, there were buyers, and they do not mind taking part in the investigation. There is no prohibition for this. But usually outsiders are not made members of the commission, but witness statements are written down from their words, which are attached to the investigation materials.

To create a commission, you need to issue an order in any form, signed by the head of the company.

Order number 3

Moscow city

In connection with the discovery of the fact of damage to the property of LLC "Vash Uyut" (certificate of inspection of broken equipment dated 09/01/2014 No. 1-inspection) in accordance with Art. 247 of the Labor Code of the Russian Federation

I ORDER:

1. To form a commission to investigate the fact of damage caused by Vash Uyut LLC, consisting of:
- Chairman of the Commission - Chief Engineer Chief Moisey Sergeevich;
- members of the commission:

- accountant Schetovodova Elena Mikhailovna;
- HR Inspector Irina Anatolyevna Personnelova.

2. To empower the commission to request explanations from the employees of Vash Uyut LLC and other witnesses, to collect and study documents, photo and video recordings related to the fact of damage being investigated.

3. Charge the commission before January 23, 2014 to conduct an internal investigation. The term of the audit is not provided for by the legislation. Set it taking into account the circumstances (for example, whether it is necessary to collect testimony of witnesses during the investigation, to call experts), and also taking into account the monthly period for issuing an order from the head to recover damages

The investigation is required to establish:
- what is the exact amount of direct actual damage caused to the company;
- whether the behavior of the suspect in causing damage to the employee was unlawful;
- whether the unlawful behavior of the suspect in causing damage to the employee caused the damage to the company;
- whether the employee suspected of this is guilty of causing damage;
- whether there are circumstances that exclude the employee's financial responsibility (force majeure, normal economic risk, extreme necessity and necessary defense).