According to the work time sheet 01/09/2014 N.V. Ochumeloruchkin worked at the office of Vash Uyut LLC. He installed and connected the air conditioning system in office No. 14. The air conditioner model McQuiy M5WMY15LR/M5LCY15FR was broken by Ochumeloruchkin due to non-compliance with operating rules and safety regulations when installing such equipment.

According to the inspection report for a faulty air conditioner dated 01/09/2014 No. 1-inspection, the equipment cannot be brought into working condition.

The amount of damage due to the breakdown of the air conditioner amounted to 32,565 (Thirty-two thousand five hundred sixty-five) rubles. Write it down exact amount of damage based on the results of inventory (inspection) and internal checks and clause 13 of Resolution No. 52:
<или>it is possible to determine the exact date of its occurrence, then on the day of its infliction;
<или>It is impossible to establish the exact date of its occurrence, then on the day of its discovery

According to clause 5.4 of the job description, with which N.V. Ochumeloruchkin was familiarized with signature, the installation engineer is obliged to know and follow the installation technology of the installed equipment. N.V. Ochumeloruchkin did not fulfill such duties. Indicate what illegal action (inaction) the employee committed

01/09/2014 with N.V. Ochumeloruchkin was asked to provide an explanation of what happened, which he had to provide up to January 13, 2014 inclusive. Explanation N.V. Ochumeloruchkin refused to give, about which a report was drawn up on January 14, 2014.

Based on the established facts, the commission came to the conclusion that N.V. Ochumelorukkin was allowed culpable action expressed in failure to comply with his official duties. Establish the employee's guilt in causing the damage

Failure to comply with the rules for working with the equipment led to its breakdown, and it cannot be repaired. Confirm the cause-and-effect relationship between the employee’s behavior and the resulting damage

Based on the results of the investigation, the commission did not identify any circumstances excluding the employee’s financial liability.

Chairman

Members of the commission:

You are not required to familiarize the employee responsible for causing the damage with all the materials of the internal inspection. But if the employee being held accountable wants to look at the documents on internal investigation, then you must provide them to him Art. 247 Labor Code of the Russian Federation.

We determine the limits of compensation for damages by the employee

Now it is important to correctly determine how much money can be withheld from the culprit. After all, if you collect compensation in an amount greater than what is allowed by law, the court will cancel such a recovery. In addition, the organization and manager may be fined during a labor inspection. Art. 5.27 Code of Administrative Offenses of the Russian Federation.

We find out whether it is possible to recover damages in full

Full material liability employee, that is compensation to the employer for damages in full, can only advance in certain cases x Art. 243 Labor Code of the Russian Federation.

We calculate how much can be withheld from those from whom we cannot recover in full

If none of the above cases apply to you, then damages can only be recovered from the guilty employee in an amount not exceeding his average monthly earnings.

Anastasia Morgunova, director of the tax consulting department of online accounting “My Business”

Labor relations are largely based on the employer's trust in the employee. Staff are provided necessary tools and equipment, often of high material value (for example, office equipment). In some cases, the employee is given large sums of money on account, for the safety or strict intended use of which he is responsible. In case of loss, damage or shortage of property entrusted to the employee, the organization has the right to legally recover damages from the culprit.

Anastasia Morgunova, director of the tax consulting department of online accounting “My Business,” explains how to correctly record the fact of causing harm, establish its size and investigate the circumstances in which it arose.

Under what conditions does the employee’s financial liability to the employer arise?

Occurs when the following conditions are simultaneously present:

- causing direct actual damage. Confirmation of the fact of damage is, for example, an act of discovery of damage caused by an employee, explanatory letter employee on the fact of causing damage, inventory materials and other evidence

(in particular, the damaged property itself);

- illegality of actions or employee inaction. For example, damage arose as a result of the fact that the employee did not fulfill his duties established by the employment contract, job description, internal labor regulations and other local acts organizations;

- causation between the employee’s unlawful actions or inaction and the direct actual damage that occurred. The cause-and-effect relationship must be obvious. For example, an employee dropped a computer on the floor, which then stopped working;

- employee's fault in causing damage to the employer. Guilt is understood as intent or carelessness (frivolity, negligence) in the employee’s actions that led to

to damage to the employer.

Confirmation: part 1 art. 233 of the Labor Code of the Russian Federation, paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.

A comment:When establishing the employee’s guilt, it is necessary to find out whether he could have acted differently in this situation, whether he had the opportunity to avoid material losses. There are circumstances that completely exclude the guilt of the person who caused the damage (if, of course, he can confirm their presence with sufficient evidence). This is an extreme necessity, an act of force majeure, a normal economic risk, necessary defense, as well as the employer’s failure to fulfill the obligation to provide adequate conditions for storing property. The Labor Code of the Russian Federation, mentioning these concepts in Art. 239, does not reveal their essence. I believe that in this case it is necessary to be guided by other legal acts, in particular, Art. 401 Civil Code of the Russian Federation, Art. 37, 39 of the Criminal Code of the Russian Federation, Art. 2.7 Code of Administrative Offenses of the Russian Federation. para. 2 clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006. On the websitewww.moedelo.org you can on practical examples learn how to apply the above concepts to employment relationships.

What is the financial responsibility of the employee to the employer?

The employee's responsibility lies in the obligation to compensate for direct actual damage caused to the employer (losses that can be accurately calculated). At the same time, the employer does not have the right to recover lost income (lost profits) from the employee.

Direct actual damage means (in total):

Real decrease in the employer's cash assets or deterioration in its condition

(including property of third parties held by the employer, if he is responsible for its safety);

The need for the employer to make costs or excess payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

For example, direct actual damage may include:

Lack of cash or property assets;

Damage to materials and equipment;

Costs for repairing damaged property;

Payments for forced absence or downtime;

The amount of the fine paid, which was applied to the employer due to the fault of the employee.

The damage that the employee caused to third parties means all amounts paid by the employer to third parties to compensate for the damage. In this case, the employee can be held liable only within these amounts and provided that there is a cause-and-effect relationship between his culpable actions (inaction) and causing damage to third parties.

Confirmation: part 1, 2 art. 238 of the Labor Code of the Russian Federation, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.

To what extent must the employee compensate for the damage caused?

The employee must compensate for damages either in the amount of his average monthly earnings or in full. It depends on what financial responsibility is assigned to the employee.

By general rule, the employee bears limited liability for damage caused - within the limits of your average monthly earnings (Article 241 of the Labor Code of the Russian Federation). But in some cases it may be entrusted to him full financial responsibility, that is, the obligation to compensate the damage caused to the employer in full (Article 242 of the Labor Code of the Russian Federation).

Cases of full financial liability are listed in Art. 243 of the Labor Code of the Russian Federation. For example, it may be assigned to the employee in accordance with the Labor Code of the Russian Federation or federal laws. So, in accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for damage caused to the employer.

In addition, the employee bears full financial responsibility if he caused damage as a result of a crime, an administrative offense, while drunk, with the intent to cause harm to the employer, and in some other cases.

Such liability also arises in the case when the employee was entrusted with valuables under an agreement on full financial liability, concluded with him individually or as part of a team (team), or he received them under a one-time document (power of attorney). It should be remembered that an agreement on full financial liability can only be concluded with an adult employee (over 18 years of age).

Confirmation: Art. 2439-245 of the Labor Code of the Russian Federation, paragraphs 9-12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006.

A comment:Employers sometimes consider concluding an agreement on full financial responsibility to be a “panacea for all ills.” Some even offer to sign such a document to all employees accepted into the organization without exception. However, it should be taken into account that agreements on full financial liability can be concluded only with employees whose positions (works) are included in the Lists, approved. Resolution of the Ministry of Labor of Russia No. 85 of December 31, 2002 (materially responsible persons). In other cases, the existence of such agreements is not justified - they will not have legal force. This clearly demonstrates arbitrage practice.

Several employers tried to recover damages in full from employees through the court, however, compensation for damages only in the amount of the average monthly earnings of the defendants was recognized as legal. The fact is that agreements on full financial liability were unlawfully concluded with employees who did not fall under the above lists (a production department specialist and a watchman). These employees were not directly involved in the maintenance or use of monetary, commodity values ​​or other property. The court indicated that these lists of positions (works) are exhaustive and are not subject to broad interpretation (Determination of the Supreme Court of the Russian Federation No. 18-B09-72 of November 19, 2009, Determination of the Moscow City Court No. 33-19538 of June 24, 2011, Determination of the Primorsky Regional Court No. 33-2124 of March 29, 2010).

How to determine the amount of material damage (losses) caused by an employee?

You need to determine the amount (as a general rule) based on market prices for property that has suffered damage. They must be valid on the day the damage occurred (for example, on the day the shortage of a particular property was discovered). In this case, the amount of material damage cannot be lower than the value of the property according to accounting data (taking into account its wear and tear).

Confirmation: part 1 art. 246 of the Labor Code of the Russian Federation.

At the same time, separate regulations may establish a different procedure for determining the amount of material damage. For example, for the theft or shortage of narcotic drugs or psychotropic substances, an employee is liable in the amount of 100 times the amount of direct actual damage caused to the organization (Clause 6, Article 59 of Federal Law No. 3-FZ of January 8, 1998).

Confirmation: Art. 238, part 2 art. 246 of the Labor Code of the Russian Federation.

How to confirm the amount of material damage (loss)?

It is necessary to confirm the amount before making a decision on compensation for material damage (losses) by the employee. The procedure for confirming the amount depends on the type of material damage caused.

As a general rule, to establish the amount of damage (losses) caused and the reasons for its occurrence, the employer must to inspect. For this purpose, the organization has the right to create special commission with the involvement of the necessary specialists (Part 1 of Article 247 of the Labor Code of the Russian Federation). For example, such a check is necessary if the damage occurred as a result of necessary defense. In this case, the employee’s financial liability is completely excluded (Article 239 of the Labor Code of the Russian Federation).

If facts of theft, abuse or damage to property are detected, the above check is carried out in the form inventory(clause 2 of article 12 of Federal Law No. 129-FZ of November 21

1996). Its results must be indicated in the comparison sheet (form No. INV-18 or No. INV-19).

Confirmation: clause 4.1 Guidelines, approved By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995

The amount of material damage resulting from an accident that occurred through the fault of an employee can be determined without conducting an internal audit. This is due to the fact that the reasons for the occurrence of material damage and its amount can be justified by:

Documents received from traffic police officers upon the accident (as confirming the cause of the damage);

Documents received from repair and insurance companies (confirming the amount of damage caused by the at-fault employee).

Once the amount of material damage has been determined, the organization must request from the employee written explanations of the reasons why the damage occurred. If the employee refuses (evades) to provide such an explanation, a report must be drawn up.

Confirmation: Part 2 of Art. 247 of the Labor Code of the Russian Federation.

How to reflect in accounting a shortage that arose due to the fault of the financially responsible person (other guilty parties) and was identified as a result of an inventory?

The identified shortage (taken into account after the inventory in the debit of account 94 “Shortages and losses from damage to valuables”) must be reflected as a settlement with the financially responsible employee (other person) recognized as the culprit.

The postings in this case will be as follows:

DEBIT 73-2 (76-2) CREDIT 94

Repayment of debt for the shortage by the employee (other guilty person) is reflected.

The market value of the property, which is compensated by the guilty person, may exceed the value at which the property is recorded. In this case, the organization must make the following entries:

DEBIT 73-2 (76-2) CREDIT 94

The shortage in the amount of the value at which the property is reflected in accounting is attributed to the financially responsible person (another guilty person);

DEBIT 73-2 (76-2) CREDIT 98-4

The difference between the amount to be recovered from the guilty party and the value at which the property is recorded is reflected.

As the guilty person recovers what is due from him Money, the specified amount is written off as other income in proportion to the repaid debt:

DEBIT 50 (51, 70) CREDIT 73-2 (76-2)

Repayment of debt for the shortage by the employee (other guilty person) is reflected;

DEBIT 98-4 CREDIT 91-1

The difference between the amount to be recovered from the guilty person and the cost of the missing valuables as part of other income is reflected.

If a shortage that arose due to the fault of a financially responsible person (other guilty parties) is identified in the reporting period, but relates to previous reporting periods, then it must be taken into account as part of future income:

DEBIT 94 CREDIT 98

The shortage related to previous periods, but identified in the reporting period, is reflected;

DEBIT 73-2 (76-2) CREDIT 94

The shortage identified in the reporting period, but relating to previous periods, is attributed to the financially responsible person (another guilty person).

As the amount due from the guilty person is collected, the shortfall is written off as other income:

DEBIT 98 CREDIT 91-1

The shortfall identified in the reporting period, but relating to previous periods, is reflected in income.

The guilt of the financially responsible person (other guilty persons) must be documented. Supporting documents may be a decision of investigative or judicial authorities, a conclusion on the fact of damage to valuables, which is issued by the department technical control or relevant specialized organizations (quality inspections, etc.).

Confirmation: clauses 5.1, 5.2 of the Methodological Instructions, approved. By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995, Instructions for the Chart of Accounts.

Also on the website www.moedelo.org you will find the necessary accounting entries in order to reflect:

Withholding material damage caused to the organization from the employee’s salary;

Accountable amounts issued to an employee for the performance of an official task that were not returned on time, as well as the deduction of such amounts from the employee’s salary;

Shortage of property that belongs to the organization, but is not listed on the balance sheet accounts, if the cause of the shortage is the fault of the employee (financially responsible or other guilty person), and others.

What is the maximum amount of deductions for material damage from an employee’s salary?

The maximum amount of deductions for amounts of material damage from an employee should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation).

At the same time, no more than 20 percent can be withheld from an employee’s monthly salary (Part 1 of Article 138 of the Labor Code of the Russian Federation).

The amount of damage that exceeds the average monthly salary of the employee (if brought to full financial liability), if the perpetrator does not agree to compensate it voluntarily, can be recovered from him only through the court (Part 2 of Article 248 of the Labor Code of the Russian Federation).

An employee can voluntarily compensate for the damage caused by him (both with limited and full financial liability). In this case, by agreement of the parties, compensation for damage by installments is allowed. In addition, the employee must submit to the employer a written obligation to compensate for damages, in which it is necessary to indicate specific payment terms (Part 4 of Article 248 of the Labor Code of the Russian Federation).

An employer can confirm its consent to payment by installments:

Either a permissive inscription (for example, “I don’t object” or “allow”) on the employee’s written obligation;

Or separate administrative document, which will specify the procedure for settlements (for example, by order, instruction).

If an employee gave a written obligation to compensate for material damage, and then quit and refused to pay the debt, the outstanding debt can only be recovered through the court.

Confirmation: part 4 art. 248 of the Labor Code of the Russian Federation.

Reading time: 9 min

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

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

Let's take a closer look.

Dear readers! Each case is individual, so check with our lawyers for more information.Calls are free.

How is the amount of damage caused determined?

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

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

However, it cannot be lower than its purchase price specified in accounting statements less wear and tear.

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

1. based on actual losses taking into account the market price for the current day;
2. based on financial statements taking into account wear and tear.

The last option is used if the market price of the product is lower than it purchase price.

Having determined the amount of compensation, the employer issues an order to withhold funds. This document must be drawn up no later than a month after the fact of damage to property is discovered and reflected in the inventory report.

The amount collected from the employee cannot exceed his monthly salary, determined on the basis of his actual wages in 12 months.

Withholding of funds is not possible from the following payments:

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

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

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

Options for compensation for material damage by an employee

Voluntary

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

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

It must be remembered that a voluntary agreement implies compensation, the amount of which does not exceed the employee’s monthly salary. That is, if the agreement specifies an amount that exceeds the employee, he may refuse to pay the remainder of the debt.

Extrajudicial

Extrajudicial compensation for damages involves the withholding of compensation from the salary of the guilty employee by order of the employer.

This is possible if several conditions are met:

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

Judicial

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

• compensation exceeds the monthly salary of the perpetrator;
• More than a month has passed since the damage was discovered.

When submitting statement of claim the employer must prove the fact of damage and its amount, as well as the degree of guilt of each employee in case of collective liability.

Recovery of damages from a dismissed employee

It is possible to recover compensation for damage caused from a dismissed employee only through the court. The algorithm of actions in this case looks like this:

Determining the time limit for going to court

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

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

Determining the amount of damage caused

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

Drawing up a statement of claim

The application must be submitted in writing or using technical means in free form. The form must contain:

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

The main mistakes of employers

1. Withholding compensation from an employee's salary that exceeds his monthly salary without his consent. For example, if the amount of damage is 15 thousand rubles, and the salary of the guilty employee - 10 thousand then total amount compensation should not exceed 10 thousand rubles. The employer can receive the remaining amount of 5 thousand only after a corresponding court decision!
2. Issuance of an order to withhold funds later than one month from the date of discovery of the damage. The countdown of the specified month begins from the moment the amount of damage caused is determined. If more than 30 days have passed since that day, compensation can be recovered only in court!
3. The actual amount of damage has not been established.
4. Inventory rules were violated.
5. Lack of written explanation from the employee. To collect compensation, the employer is obliged to require a written explanation from the employee regarding the fact of the damage. The request must be made in such a way that the employer has documentary evidence of this. Refusal to give an explanation is formalized by an appropriate act.
6. Demanding compensation from an employee in the presence of circumstances excluding any financial liability. These include: force majeure, extreme necessity and defense, as well as neglect by the employer himself of the rules and regulations for storing property.
7. Absence or, conversely, its conclusion in the absence of grounds. If an employee working with material assets does not have a full liability agreement, in the event of damage he will be liable within the limits of his monthly salary. Also, the employer does not have the right to enter into such an agreement with employees employed in positions not specified in the list of positions (Resolution of the Ministry of Labor No. 85). Such a document will be declared invalid in court.

Arbitrage practice

Example 1

Appealed to the court state enterprise with a claim against the former driver Klipikov demanding compensation for material damage. According to the statement, the defendant Klipikov, while performing his job duties, hit the car of citizen Ivanov while driving a company car. The court found Klipikov guilty of this accident and ordered him to pay Ivanov 80 thousand in material damage.

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

The plaintiff's claims were denied. According to the court, the defendant at the time of the accident, i.e. causing damage, was on duty official duties. For the two months that Klipikov worked in the organization, they were paid 20 thousand rubles, with his average salary being 15 thousand.

Grounds for refusal of the claim: since the position of a driver is not included in the list of positions that imply full financial responsibility, compensation may be recovered from the defendant not exceeding his monthly salary. This amount has already been paid by the defendant.

Example 2

The organization filed a lawsuit demanding compensation for material damage from the former employee. An agreement on full financial liability was concluded with the defendant Ivanov. Material assets were entrusted to the defendant on the basis of an inventory act, secured by his personal signature. During the next inventory, a shortage of valuables entrusted to Ivanov was revealed. The defendant provided a written explanation for this fact, indicating that there were no material assets indicated in the previous inventory report, and accordingly, no damage was caused to the organization.

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

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

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

The Employer wants to withhold part of the amount from the Employee’s official salary due to the latter causing damage. We need information about the retention procedure and the necessary documents.

Answer

When paying wages to an employee, you should always remember not only its size, but also about correctly made deductions. We list the basic rules that any employer should know when withholding employee salaries on their own initiative.

All deductions can be classified as follows:

• main (personal income tax, according to writs of execution);
• at the initiative of the employer (for unpaid advance payment, material damage, etc.);
• at the initiative of the employee (at the request of the employee).

This classification is presented in the order in which deductions should be made. In the article we will focus on deductions made at the initiative of the employer. In order to avoid mistakes and not violate labor laws, we will look at the basic rules that an employer must know and follow.

Rule 1. Deductions from wages are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws

According to Art. 137 of the Labor Code of the Russian Federation, deductions from an employee’s salary to pay off his debt to the employer can be made:

• to reimburse an unpaid advance issued to an employee on account of wages;
• to repay the unspent and not timely returned advance issued in connection with business trip or transfer to work in another area, as well as in other cases;
• to return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards or downtime;
• upon dismissal of an employee before the end of the working year for which he has already received annual paid leave - for days not worked vacation.

In this case, there are restrictions - deductions for compensation of unworked vacation days are not made if the employee is dismissed for the following reasons:

1. the employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (clause 8, part 1, article 77 of the Labor Code of the Russian Federation);
2. liquidation or reduction of personnel or staff (clause 1, 2, part 1, article 81 of the Labor Code of the Russian Federation);
3. change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4, part 1, article 81 of the Labor Code of the Russian Federation);
4. conscription of an employee into military service or sending him to an alternative alternative civil service(clause 1, part 1, article 83 of the Labor Code of the Russian Federation);
5. reinstatement of an employee who previously performed this work, by decision state inspection labor or court (clause 2, part 1, article 83 of the Labor Code of the Russian Federation);
6. recognition of the employee as disabled (clause 5, part 1, article 83 of the Labor Code of the Russian Federation);
7. death of an employee (clause 6, part 1, article 83 of the Labor Code of the Russian Federation);
8. the occurrence of emergency circumstances interfering with the implementation labor activity(clause 7, part 1, article 83 of the Labor Code of the Russian Federation).

The list of grounds allowing the employer to make deductions on his own initiative is closed and not subject to broad interpretation. For example, it is impossible to withhold from an employee’s salary any amounts overpaid to him due to an incorrect interpretation of regulatory legal acts.

Despite the fact that there are grounds for deduction, the employer should obtain the employee’s consent to it. If the latter is against it, even if the grounds are specified in Art. 137 of the Labor Code of the Russian Federation, then it is unlawful to make a deduction. The employer will have to resolve this issue in court. An exception when the employee’s consent is not required is the withholding of amounts for unworked vacation days.

Also, labor legislation allows the employer, in certain cases, to withhold from the employee’s wages material damage caused to the organization (Article 238 of the Labor Code of the Russian Federation).

Rule 2. The employer can make deductions only within the time limits specified by labor legislation

We discussed above cases when an employer can make deductions from an employee’s salary. Please note that each of these has limitations.

In Table 1 we list the deadlines that the employer must comply with.

Collapse Show

Please note: if the employer does not formalize and make a deduction within a month on the basis of Art. 137 of the Labor Code of the Russian Federation (return of advance payment, repayment of debt, incorrectly calculated payments), then he will have to resolve the issue of withholding through the court.

In the case of material damage there are also restrictions: if the amount of damage exceeds a month average earnings employee and the month period has expired, then deduction can only be made on the basis of a court decision.

Rule 3. The amounts of deductions established by law must be observed.

According to Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages cannot exceed 20%. Also, one should not forget about the norms of Part 1 of Art. 99 of the Labor Code of the Russian Federation: the amount of deduction from wages is calculated from the amount remaining after withholding taxes. Let's look at this issue using an example, calculating the maximum amount that can be withheld from wages for a month.

Example 1

Calculation of the maximum amount that can be withheld per month

Collapse Show

Manager Klimov A.N. On August 10, an advance was issued for travel expenses in the amount of 9000 rubles. According to the advance report, which was submitted to the accounting department on August 14, the specified employee did not spend 5,000 rubles. This amount was not returned to Klimov. On August 25, the employer issued an order to withhold the amount of the unreturned advance from his wages.

The accountant accrued wages to the specified employee for August in the amount of 12,900 rubles. The employee agrees to the retention.

Let's define size limit, which can be withheld from an employee’s salary for August due to an unreturned advance:

1. Let's calculate the amount of personal income tax: 12,900 × 13% = 1,677 rubles.
2. Let's set the maximum deduction amount: (12,900 - 1,677) × 20% = 2,244 rubles. 60 kopecks

That is, for August from the salary of A.N. Klimov. The maximum you can withhold is an unreturned advance payment in the amount of no more than 2,244 rubles. 60 kopecks.

The remaining amount is 2755 rubles. 40 kopecks (5000 - 2224.6) will be withheld in the following months.

What if an employee quits and the final salary is not enough to fully cover the unreturned advance? What to do in this situation?

In this case, two options are possible:

1. Agree with the employee on the voluntary return of the remaining amount of the unspent advance.
2. Go to court if the employee refuses to voluntarily reimburse the unrefunded amounts.

Please note: Withholding limits may be increased.

According to Part 1 of Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages in cases provided for by federal laws cannot exceed 50% of the wages due to the employee.

Thus, the maximum amount of deduction equal to 50% will be if the amount under the writ of execution should be withheld from the employee at the same time, say, to recover from the employee in compensation for an outstanding loan, as well as an unreturned advance issued for travel expenses.

Let's look at an example of the procedure for determining the maximum amount for withholding on several grounds: an advance payment issued for travel expenses that was not returned on time, and collection under a writ of execution.

Example 2

Calculation of the maximum size when withholding on several grounds

Collapse Show

Auditor A.P. Kochkin On August 5, an advance was issued for travel expenses in the amount of 8,000 rubles. According to the advance report, which was submitted to the accounting department on August 10, the specified employee did not spend 4,000 rubles. This amount is given to A.P. Kochkin. was not returned.

Also on August 10, the organization received a writ of execution for recovery from Kochkin in compensation for the loan that was not repaid on time (the amount of compensation is 5,000 rubles).

The accountant accrued wages to the specified employee for August in the amount of 15,500 rubles. The employee agrees to the retention.

Let’s determine the maximum amount that can be withheld from wages for August:

1. Calculate the amount of personal income tax: 15,500 × 13% = 2015 rubles.

2. We will set a maximum amount of deductions for August. According to Part 1 of Art. 138 of the Labor Code of the Russian Federation, the maximum amount of deductions in this case cannot exceed 50%: (15,500 - - 2015) × 50% = 6,742 rubles. 50 kopecks

From the specified amount, at the initiative of the employer (for an advance not returned on time), the following can be withheld: 15,500 × 20% = 3,100 rubles.

3. We determine the amount that can be legally withheld from the employee’s salary for August:

6742.5 - 5000 = 1742.5 rub. (less than 3100 rub.);

4000 - 1742.5 = 2257 rub. 50 kopecks - the specified amount of an advance not returned on time can be withheld only in the next month.

That is, the following amounts can be legally withheld from wages for August:

• the amount of recovery under the writ of execution is 5,000 rubles;
• advance payment issued for travel expenses not returned on time - 1,742 rubles. 50 kopecks

The limit increases to 70% (Part 3 of Article 138 of the Labor Code of the Russian Federation):

• while serving correctional labor;
• when collecting alimony for minor children;
• when compensating for harm caused by an employee to the health of another person;
• when compensating for damage to persons who suffered damage due to the death of the breadwinner;
• when compensating for damage caused by a crime.

Rule 4: Deductions must be properly documented.

In order to withhold amounts from an employee’s salary on the grounds specified in Art. 137 of the Labor Code of the Russian Federation, the employer should issue an order about this. Established by law There is no order form, so the employer develops the order form independently. Orders should be issued within a month from the date of expiration of the period established for the return of unpaid advances, amounts calculated in error, and repayment of debts.

When deducting compensation for unworked vacation days, an order is not required to be issued.

If we are talking about withholding amounts to pay off material damage, then you should also adhere to the monthly period. That is, the order is issued no later than one month from the date the employer has established the amount of damage caused by the employee (see Example 3).

Before this, as we have already said, the employer should obtain the employee’s consent to withhold (with the exception of reimbursement of amounts for unworked vacation days). To record the receipt of consent, several options can be offered:

1. draw up a notice of withholding, which includes a column indicating the employee’s consent;
2. ask the employee to draw up a statement that he does not object to the deduction (Example 4);
3. provide in the order a note indicating consent to withholding.

Example 3

Collapse Show

Example 4

Collapse Show

In conclusion, we would like to remind you that for unjustified deductions, an organization can be fined under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

home » How to earn » Recovery of material damage upon dismissal of an employee. Compensation for damage by deduction from wages Deduction of material damage upon application