Law on delayed wages. Delay of wages under the labor code. Regulatory legal acts regulating wages and determining the consequences of its delay

Wages are considered delayed if they are paid only once a month: labor code Russian Federation the employee must receive remuneration for his work every six months on the day established by the internal labor regulations.

If you have not received your wages on time, the law specifies several protection mechanisms to which the employee is entitled. Firstly, to suspend work. This must be done 15 days after the payment deadline established by the internal regulations. You must inform your employer about your decision using a statement and only after he receives it, suspend work. The employer must pay the employee for the period of suspension of work in the amount of at least two thirds of his average wages. But there is one “but” here - this measure cannot be used by civil servants, workers associated with the life of the population, and the military.

And, of course, you can recover the amount earned from the employer by going to court. But this must be done within three months from the day the payment is due, having collected all available evidence: documents certifying your employment relationship with the employer, information about the amount of wages due to you, record the date when the wages were due be paid or state the date of the last payment of wages. You can also recover money from your employer by applying to the court for a court order. If he does not appeal it within ten days, the document comes into force and salary delay must be liquidated by court decision.

In addition, there is the possibility of bringing to criminal liability an employer who has allowed salary delay. According to Article 145.1 of the Criminal Code of the Russian Federation, it occurs after two months salary delays and provides for penalties up to imprisonment.

In the 90s in our country salary delay occurred quite often, but today the number of violations associated with delayed wages is much less common. Isolated cases recorded salary delays allowed by specific employers. The state, trying to protect employees from unlawful actions of the employer, adopted the Law on Employer Liability for Delayed Salaries.

After the adoption of the Employer's Liability Law delay of wages, most constituent entities of the Russian Federation have coped with the problem of payments. But on the territory of our country there are still areas, individual enterprises and organizations for which delayed wages remains commonplace. In order to stabilize the situation and “protect citizens from the illegal practice of non-payment of wages, pensions, scholarships and other benefits,” the President of the Russian Federation introduced amendments to Article 145.1 of the Criminal Code of the Russian Federation, guaranteeing each citizen remuneration for work not less than minimum size wages. Violation of deadlines for payment of wages under labor law is equivalent to forced labor.

Punishment for partial (less than half) non-payment of wages, pensions, scholarships and other social payments for more than three months will be a fine of up to 120 thousand rubles, or deprivation of the right to hold certain positions or engage in certain activities for up to one year for individuals , heads of branches, representative offices, or other separate structural divisions of organizations, or imprisonment for up to one year. Complete non-payment of these social payments for more than two months will be punishable by a fine in the amount of 100 to 500 thousand rubles, or imprisonment for up to three years.

If the delay in salary caused serious harm to the health of the employee, then penalties are imposed in the amount of two hundred thousand to five hundred thousand rubles, or imprisonment for a term of two to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, individuals, heads of branches, representative offices or other separate structural divisions of organizations are punished.

Last modified: March 2020

The permissible intervals for making payments to personnel, as well as the maximum possible time that should pass between the performance of work and its payment, are established by law (Articles 136, 140, 141 of the Labor Code of the Russian Federation). Any deviation from these standards is unacceptable, but the duration directly affects the severity of the sanctions applied to the employer.

What are the acceptable deadlines for salary payments?

The entire list of restrictions on the dates of transfer of payment for work done is enshrined in Art. , , Labor Code of the Russian Federation. At the same time, the timing of salary payment depends on the specific circumstances of its accrual:

• For amounts for work performed, both systematic and one-time, the following parameters must be adhered to:
  • Payment occurs every half month;
  • The transfer of money is carried out no later than 15 days after the end of the time period for which the accrual was carried out.
• Payment upon dismissal is carried out on the employee’s last working day. If he did not go to work on the specified date, then the payment is made the next day after he applies for arrears;
• Vacation pay is transferred no later than 3 days before the start date of the vacation;
• The salary of a deceased employee, not received by him on the date of death, is paid to his closest relatives within a week from the date they submit documents for its issuance.

Any clauses allowing for delays in employee salaries in legislative acts No.

Can an employer withhold wages without consequences?

In general, an unpunished delay in the payment of wages, as noted above, is impossible. According to the provisions of Art. 236 of the Labor Code of the Russian Federation, the employer in any case charges the employee a penalty for each day of delay in the amount of 1/150 of the key rate of the Central Bank of the Russian Federation calculated from the amount of debt.

But it is also necessary to take into account the provisions of Art. 142 of the Labor Code of the Russian Federation, which regulates the procedure for self-defense of workers. It gives the employee the right to temporarily suspend work only in the case of full or partial work for more than 15 days. Based on this, the employee can initiate complaints to the inspection authorities, or, only after specified period, or in case of non-payment of the above penalty, since this would be a direct violation of the Labor Code of the Russian Federation.

Thus, if the employer paid the salary with due penalties within 15 days after the date of accrual established by local regulations, most likely he will not suffer any more severe punishment.

What does an employer face for delaying wages?

For those who have violated the terms of settlements with personnel, the legislation provides. Each of them depends on certain parameters, including the delay period:

• Material liability, in the form of a penalty, occurs in any case, even if the deadline is not met by only 1 day;
• Administrative liability, ranging from fines to disqualification, will be applied if the delay is more than 15 days, and the employee contacts the authorized bodies;
• applies if there is personal intent of the manager in the following cases:
  • Complete non-payment for more than 2 months;
  • Partial (less than half the amount) non-payment for more than 3 months;
  • Payment less than the minimum wage issued for more than 2 months.

In this regard, the employer should think about whether it is worth delaying wages at all.

If there is a delay in wages, an employee of the organization can file a complaint:

• Labour Inspectorate
• Prosecutor's office

The labor inspectorate protects workers from unlawful actions of their superiors. The employees of this organization help in solving problems with payment deadlines. The labor inspectorate, after receiving a petition from a disadvantaged employee (group of employees), inspects the specified enterprise.

The prosecutor's office considers the workers' application, and by checking the institution and its head, in particular, makes a decision to impose penalties on the head of the enterprise.

Employees of a non-executive organization can file a lawsuit. To satisfy it, it is necessary to provide the court with the maximum amount of evidence of the violation

Application for non-payment of wages to the prosecutor's office

The petition is written in free form from one or more employees. The law does not stipulate the maximum number of employees who can appear in a collective statement.

The application must include certain points:

• Company details
• Manager information
• Information about each applicant

The essence of the claim should be stated briefly but fully.

Complaint to the labor inspectorate about salary delays of 2 months or more

Complaint to labor inspection is written similarly to that described in the previous paragraph.
This document can be sent by e-mail, by registered mail or personally submit to the inspectorate. Directly at the inspection itself you can see a sample complaint for its registration.

If an employee of an organization does not want the author of the petition to be revealed during the inspection, a non-disclosure clause can be indicated in the text of the complaint.

In case of delay in payment labor activity employees can apply to special authorities for proceedings. However, we should not forget about human factor and the possibility of solving the problem peacefully, through conversation.

What can an employee do?

What can an employee do?

The employee(s) who are delayed in the payment of their wages have every right to demand payment of the money they earned along with interest.

By the way, the employee, if desired, can calculate the amount of compensation for delayed wages independently using the following formula:

Salary compensation = current debt * 1/300 of the refinancing rate or 14% * number of days overdue.

In addition, enterprise personnel may require:

• indexation of wages due to inflation;
• demand compensation for moral damage. Moral damages may be paid in an amount determined by agreement between the director and employee. However, if the employer refuses to pay such an amount, demand moral compensation it is possible only through the court;
• suspension of work, provided that wages have not been accrued for more than 15 days, but the employer must be notified of such suspension in writing;
• demand the competent authorities to impose a fine on the head of the enterprise for any delay in payments.

If the salary is delayed for more than 15 days

The counting of days of delayed wages should be counted from the day following the date of payment of wages, fixed in the local acts of the organization. The employee must be familiarized with these acts, but if the employee does not know what deadlines are established in the organization for payment of labor, then he should contact the employer with the requirement that the employee familiarize himself with the relevant documents. The timing of payment of wages can be specified in a collective agreement, labor regulations, or an employment contract with the employee.

If 15 days have passed and the employee’s wages have not been paid, he has every right not to go to work starting from the next day. This right is given to him by Article 142 of the Labor Code of the Russian Federation.

The main condition that must be met is written notification to the employee of his intention to stop the work process. The employee should write an application for suspension of work due to a delay in wages of more than 15 days. The application must be drawn up in two copies.

One is given to the employee, the second with the organization’s visa to accept the application should be kept for yourself. This will be proof that the employee notified management of the termination of work; in this case, the employee’s absence from the workplace will not be defined as absenteeism.

If the employer does not want to accept the employee’s application, or the office does not want to put a stamp on acceptance of the document, then you need to send a notification by mail with a list of the attachments and a receipt.

The employee is obliged to return to work as soon as he receives written confirmation from the company management that wages are planned to be paid. Also, the employee is obliged to go to work as soon as he receives his due cash.

The employee’s right to be present at work if wages are delayed for more than 15 days or not to go to work workplace at all.

Before writing an application and stopping work, you need to make sure that the employee’s position does not fall under the exceptions established by Article 142 of the Labor Code of the Russian Federation, for which stopping work is not allowed.

Which employees cannot stop work if wages are delayed for more than 15 days:

• military personnel;
• working in law enforcement agencies;
• firefighters;
• working in rescue services, emergency services;
• providing the population with water supply, heating, electricity, communications;
• working in the ambulance;
• civil servants;
• working in production with particularly hazardous conditions;
• when a state of emergency or martial law is declared.

Where can you complain if your employer delays your salary?

An employee can not only not go to work while waiting for his money, but also take certain actions aimed at receiving his due salary. An employee can complain to various authorities and institutions.

Labor Inspectorate

The first place an employee should contact if wages are delayed is the Federal Labor Inspectorate. You can complain starting from the first day of the delay.

The employee should write a written statement outlining the fact of the delay in wages, after which the statement with supporting documents is submitted to the labor inspectorate, which will check the employee’s statements and, if the employer is found guilty, impose a fine on the organization. Punishment in the form of suspension of activities for up to 90 days may also be applied.

The application must be accompanied by documents that confirm that the employee actually works in this organization (employment contract). You must also provide a document confirming your salary, due to the employee for his work, documents establishing the terms of payment of wages.

Prosecutor's office

An employee can complain to the prosecutor's office if the salary delay exceeds 2 months. You need to complain at the location of the organization. A statement is drawn up, on the basis of which the prosecutor's office conducts its investigation.

Court

Another institution where an employee can complain about delayed wages is the court. In this case, a statement of claim is drawn up, to which the documents listed above are attached.

Is salary delay allowed under the labor code, and for what period?

A little higher, we told you what you need to do if you don’t get paid. However, sometimes the economic situation in the country or other force majeure circumstances can make certain adjustments, as a result of which delays in payments to employees occur for reasons beyond the employer’s control. Let's figure out what to do and where to go if your salary is delayed?

How long is a wage delay allowed? Let us turn again to the law: art. 136 of the Labor Code of the Russian Federation states that the employer is obliged to pay wages at least twice a month on the days established by the internal labor regulations.

Any violation of deadlines (even if it is 1 day), regardless of the reasons, is considered unacceptable and may entail liability with the subsequent application of certain sanctions against the employer. Of course, it is unlikely that any employee will contact the regulatory authorities in the event of a one-day delay in wages, but from a legislative point of view this is possible and acceptable. The law is on the employee's side. Delaying or not paying wages is prohibited. Otherwise, the employer will rightfully be held liable. There are no permissible delay periods.

How can an employee protect his rights?

How can an employee protect his rights?

If the rights of employees to receive wages are violated, employees have the right to appeal to the labor dispute commission.

An application submitted to the CCC must be registered in this body and can be considered within 10 days after filing the complaint.

If the CCC satisfies the complaint of a subordinate, this decision must be complied with by the employer.

Also, working citizens have the authority to file a complaint with the labor inspectorate. In his application, the employee must indicate the following information:

• Full name and address of the employee;
• Full name of the employer and address of the enterprise;
• The text of the complaint itself indicates: during what period the salary was not paid, the final amount of the debt, and other circumstances relevant to the case.

It is also advisable to attach a copy of your employment contract and other evidence that confirms the fact that the salary was not actually paid to the application. The complaint can be filed in person or through a representative, or it can also be sent by registered mail with subsequent acknowledgment of receipt.

The time frame for consideration of a complaint and the labor inspectorate is 30 days from the date of its receipt. If the fact that wages are delayed at the enterprise is established, the manager will be given an order to pay wages, taking into account interest. Monitoring the implementation of this regulation is carried out by the labor inspectorate.

You can also file a lawsuit demanding payment of arrears of wages in the district court. A copy of the employment agreement must be attached to the claim, work book, as well as documents that confirm the delay in salary (bank statements, payslip).

If your wages were accrued but were not paid, you can contact the magistrate with a request to issue a court order. This document is equivalent to a writ of execution. The magistrate issues an order within 5 days after the employee’s application.

You can challenge an order within 10 days after it is issued. Based on a court order, you can recover both the amount of the debt on wages and the interest accrued for this period.

Manager's responsibility for non-payment of wages

Manager's responsibility for non-payment of wages

If the management of the enterprise violates the terms of salary payment, then for each day of delay the payment of interest is also established.

This rule is specified in Art. 236 of the Labor Code of the Russian Federation, the interest rate is set at 1/3000 of the current refinancing rate of the Central Bank of the Russian Federation, and it is calculated for each day of delay.

At the same time, such a rate can be set at an increased rate in a collective agreement or local act of the enterprise.

The first day of delay is determined to be the next day after the occurrence of the established date for payment of wages to personnel. The last day for repayment of wage arrears is the established date for the payment of wages.

After all personal income tax deductions have been made, all due payments are transferred to employees. The director of an enterprise cannot refuse to pay wages because the employee has been reprimanded or there are some other shortcomings in his work.

Right to suspension of work

Right to suspension of work

In Art. 142 of the Labor Code establishes the right of citizens to suspend work in cases where the boss has delayed wages for more than 15 days. However, such activities can only be carried out after written notification to the employer.

For example, an employee may ask his boss to sign a second copy indicating that he has received a notice of suspension of work due to late payments.

If the manager refuses to sign such a notice from the staff, the document can be sent via mail.

However, the letter must be sent with return receipt requested. After the manager receives this letter, the employee (employees) have the right to suspend work. Note that the time of suspension is paid based on the employee’s average salary.

During a suspension of work for such a reason, employees are permitted to remain away from their workplace. But in the event that employees receive from the employer about his readiness to repay the debt, they undertake to go to work no later than the next day after receiving such notification. Moreover, management is obliged to repay wage arrears, taking into account interest on late payments.

Some employees do not have the right to suspension of work, this includes the following categories of employees:

• an employee of the structures of the Armed Forces and other paramilitary formations that deal with the defense of the Russian Federation, as well as carry out fire fighting, search and rescue work, and activities to eliminate emergency situations and natural disasters;
• law enforcement officers;
• employees of enterprises engaged in servicing dangerous equipment or hazardous industries;
• civil servants;
• workers who are employed in energy supply, heat and water supply enterprises, ambulance and emergency medical care stations, communications, and energy supply.

It is not permitted to announce a suspension of work during a period of emergency or martial law.

List of sources

• kadromir.ru
• www.PapaJurist.ru
• trudinsp.ru
• www.samso.ru

In order to increase the interest of employers in preventing violations of the labor rights of employees, it was proposed to exclude draft Federal Law No. 473887-7 “On Amendments to Article 5.27 of the Code of the Russian Federation on Administrative Offenses”, submitted to the State Duma on May 25, 2018, from Part 6 of the said article. punishment in the form of a warning. If the bill is adopted, the employer will no longer be able to get off with a warning for failure to meet the deadlines for paying wages and will have to pay a fine. You will learn about the consequences for an employer of late payment of wages from this article.

The Ministry of Labor in Letter No. 14-1/OOG-4375 dated May 24, 2018 recalled that, according to paragraph. 5 hours 1 tbsp. 21 of the Labor Code of the Russian Federation, an employee has the right to timely and full payment of wages in accordance with his qualifications, complexity of work, quantity and quality of work performed. In turn, the employer is obliged to pay the full amount of wages due to employees within the time limits established in accordance with the Labor Code of the Russian Federation, the collective agreement, internal labor regulations, and employment contracts (paragraph 7, part 2, article 22 of the Labor Code of the Russian Federation).

Part 6 of Art. 136 of the Labor Code of the Russian Federation establishes that it is paid at least every half month. The specific date for payment of wages is fixed in the internal labor regulations, collective or employment agreement no later than 15 calendar days from the end of the period for which it was accrued. In Letter No. 14-2/B-761 dated August 18, 2017, the Ministry of Labor noted that the employee’s right to receive wages at least every half month is one of the conditions established by law, and this condition cannot be worsened either by agreement of the parties or on the basis of a collective agreement.

For your information:

The Labor Code does not regulate specific terms for the payment of wages (does not provide for specific dates of the calendar month), but at the same time it establishes requirements for the payment of wages at least every half month, as well as the maximum permissible period of time after the end of the worked period in which it must be paid part of the salary for this period.

The specific date for payment of wages is established by internal labor regulations, collective or employment contract no later than 15 calendar days from the end of the period for which it was accrued.

For your information:

When paying wages for the second half of the month, the employee must be given a pay slip in the form approved by order of the head of the organization (Part 1 of Article 136 of the Labor Code of the Russian Federation, Letter of Rostrud dated December 24, 2007 No. 5277-6-1).

An employer or representatives authorized by him in the prescribed manner who have delayed the payment of wages to employees and other violations of wages are liable in accordance with the Labor Code of the Russian Federation and other federal laws (Part 1 of Article 142 of the Labor Code of the Russian Federation). So, due to a delay in the payment of wages, the employer faces the risk of attracting:

to financial liability, which implies payment of compensation to the employee;

to administrative and criminal liability.

In addition, upon receipt state inspection labor reports about delays in payment of wages may be carried out unscheduled inspection organizations (clause “b”, clause 10 of the Regulations on supervision in the sphere of labor).

Let us consider the procedure for bringing to responsibility in more detail.

Payment of compensation for delayed payment of wages

According to Art. 236 of the Labor Code of the Russian Federation, in case of violation of the established deadlines for the payment of wages, vacation pay and (or) other amounts due to the employee, the employer is obliged to pay them with interest (monetary compensation). In this case, the obligation to pay compensation does not depend on the presence of his guilt.

For your information:

The compensation provided for in Art. 236 of the Labor Code of the Russian Federation, the employer must pay the employee for delaying the payment of wages even for one day.

The amount of monetary compensation cannot be lower than 1/150 of the key rate of the Central Bank of the Russian Federation in force during the period of delay from the amounts not paid on time for each day of delay, starting from the next day after the established payment deadline and ending with the day of actual settlement, inclusive. If wages and (or) other amounts due to the employee are not paid in full on time, the amount of compensation is calculated based on the amounts actually not paid on time.

For your information:

The amount of monetary compensation may be increased due to collective agreements, labor agreements or local regulations.

Compensation is calculated using the following formula (based on the key rate of the Central Bank of the Russian Federation, if the employer has not established an increased amount of compensation):

Example.

According to local regulations The organization's salary for the second half of the month must be paid on the 10th of the next month. In fact, the salary for the second half of September 2018 was 30,000 rubles. was paid on October 18, 2018.

We will calculate compensation for delayed payment of wages. Local acts of the organization do not provide for an increased amount of compensation.

The number of days of delay was 8.

The key rate of the Central Bank of the Russian Federation is 7.5% (valid from September 17, 2018 in accordance with the Information of the Central Bank of the Russian Federation dated September 14, 2018).

Consequently, the compensation payable to the employee will be equal to 120 rubles. (RUB 30,000 x 7.5%/150 x 8 days).

Reflection of compensation in accounting. Since compensation for delayed payment of wages is the financial responsibility of the employer, it can be qualified as a sanction for violation of the employer’s contractual obligations to employees. For purposes accounting such compensation is included in other expenses and is recognized on the date of its accrual (clauses 4, 11, 16 of PBU 10/99 “Expenses of the organization”).

The amount of compensation is subject to reflection on account 73 “Settlements with personnel for other operations”. If we assume that the amount of compensation is taken into account as part of other expenses, the following entries should be made in accounting:

Debit Credit – compensation has been accrued for delayed payment of wages;

• Debit Credit () – workers compensation paid.

For your information:

In the Order of the Ministry of Agriculture of the Russian Federation dated 06.06.2003 No. 792 “On approval Methodological recommendations on accounting of production costs and calculating the cost of products (works, services) in agricultural organizations” it is indicated that the amount of compensation for late payment of wages should be reflected under the article “Wages”. In this case, compensation is included in expenses for ordinary activities on the date of accrual of compensation on the basis of clauses 5, 16 of PBU 10/99.

Taxation of compensation with personal income tax and insurance premiums. Compensation for delayed payment of wages is not subject to personal income tax. This follows from the provisions of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of the Russian Federation dated February 28, 2017 No. 03-04-05/11096, dated January 23, 2013 No. 03-04-05/4-54, dated April 18, 2012 No. 03-04-05/9-526, Federal Tax Service of the Russian Federation dated June 4, 2013 No. ED-4-3/10209). We would like to remind you that, according to this paragraph, all types of compensation payments established by the current legislation of the Russian Federation (within the limits provided for in accordance with the legislation of the Russian Federation) related to the taxpayer’s execution are not subject to taxation (exempt from taxation). labor responsibilities.

For your information:

If normative local act organization, payment of compensation for delayed payment of wages is set at a high rate and is made regularly, it can be recognized integral part wages, and the organization is accused of using a scheme to minimize tax liabilities.

For example, in the Resolution of the FAS UO dated November 30, 2012 No. F09-11655/12, the court found that:

compensation payments were of a regular, systematic nature, and their size significantly exceeded the amount of accrued wages;

analysis of cash flows for each month indicates that the company has the ability to pay wages on time;

The amount of funds allocated by the company each month to pay wages is usually lower than the amount of compensation paid in the same month.

Taking into account these circumstances, it was concluded that under the guise of compensation for the delay in the payment of wages, wages were paid to employees. In this regard, the court recognized the legality of withholding personal income tax from the entire amount of compensation, and not only in part of the increased amount.

As for insurance premiums, the amounts not subject to taxation are listed in Art. 422 of the Tax Code of the Russian Federation. The payment associated with the delay in the payment of wages is not mentioned in the specified norm, therefore, it will be subject to insurance contributions in general procedure. This is the official position of the Ministry of Finance, set out in Letter No. 03-15-06/16239 dated March 21, 2017.

It should be noted that during the period of validity of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums in Pension Fund Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund” made decisions in favor of organizations that did not impose insurance premiums on this type of payment. Thus, in Resolution No. 13AP-11744/2017 dated June 20, 2017, the Thirteenth Arbitration Court of Appeal recognized that amounts of monetary compensation are not subject to inclusion in the base for calculating insurance premiums. Financial compensation(interest) for delay in payment of wages, provided for in Art. 236 of the Labor Code of the Russian Federation, is a type of financial liability of the employer to the employee, paid by force of law to an individual in connection with the performance of his job duties, ensuring additional protection employee labor rights. The amount of monetary compensation paid to an employee may be increased by a collective or labor agreement. The obligation to pay the specified compensation arises regardless of the employer’s fault.

The amount of accrued contributions is included in tax expenses (letters of the Ministry of Finance of the Russian Federation dated March 21, 2017 No. 03-15-06/16239, dated March 15, 2011 No. 03-03-06/1/138).

The amount of compensation for delayed payment of wages is not taken into account for the purposes of income tax and tax when applying the simplified tax system (Letter of the Ministry of Finance of the Russian Federation dated October 31, 2011 No. 03-03-06/2/164). The question of whether the amount of compensation paid to an employee for a delay in the payment of wages is recognized as an expense for income tax purposes was once again considered by financiers in Letter No. 03-03-06/1/63083 dated September 4, 2018. Officials did not give a clear answer, pointing out that the validity of the expenses taken into account in the calculation tax base, must be assessed taking into account the circumstances indicating the taxpayer’s intentions to receive economic effect as a result of real entrepreneurial or other economic activity.

At the same time there is court decisions, in which the arbitrators indicated the right of taxpayers to recognize such expenses for tax purposes. The judges came to the conclusion that expenses in the form of the amount of monetary compensation paid by the employer to employees on the basis of Art. 236 of the Labor Code of the Russian Federation are a sanction for violation of contractual obligations. Subclause 13, clause 1, art. 265 of the Tax Code of the Russian Federation does not contain any restrictions on the accounting of sanctions as expenses, depending on the framework of which legal relations (civil or labor) contractual obligations are violated, therefore the expenses incurred are taken into account when taxing profits (resolution of the Federal Antimonopoly Service dated August 30, 2010 in case No. A55-35672/2009, dated 06/08/2007 in case No. A49-6366/2006, FAS VVO dated 08/11/2008 in case No. A29-5775/2007, FAS UO dated 04/14/2008 No. F09-2239/08- C3 in case No. A60-14685/07).

The employee's right to suspend work.

Taking into account the provisions of paragraph 2 of Art. 142 of the Labor Code of the Russian Federation, in the event that the payment of wages is delayed for more than 15 calendar days, the employee has the right to suspend work until the delayed amount is paid to him, notifying the employer in writing. During the period of suspension of work, the employee has the right to work time be absent from the workplace (Letter of the Ministry of Labor of the Russian Federation dated December 25, 2013 No. 14-2-337). The Ministry of Labor, in Letter No. 14-2/B-761 dated August 18, 2017, confirmed that due to a delay in the payment of wages, an employee may suspend work while on a business trip.

For your information:

An employee’s refusal to perform work due to non-payment of wages is one of the forms of self-defense of labor rights (Article 379 of the Labor Code of the Russian Federation). Moreover, according to paragraph 57 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, an employee can suspend work regardless of whether the employer is at fault for not paying him wages.

The Labor Code provides a list of cases when suspension of work is not allowed (Part 2 of Article 142 of the Labor Code of the Russian Federation):

during the period of martial law or a state of emergency;

in military bodies and organizations in charge of ensuring the defense of the country and state security, emergency rescue, search and rescue, fire fighting, work to prevent or eliminate natural disasters and emergency situations, in law enforcement agencies;

for civil servants;

in organizations directly servicing particularly hazardous types of production and equipment. Employees of these organizations, whose right to timely and full payment of wages has been violated, can appeal to the labor dispute commission, court or state supervisory and compliance authorities labor legislation(Definition of the Constitutional Court of the Russian Federation of October 19, 2010 No. 1304-О-О);

in relation to work related to ensuring the livelihoods of the population (energy supply, heating and heat supply, water supply, gas supply, communications, provision of ambulance and emergency medical care).

During the period of suspension of work, the employee has the right to be absent from the workplace (Part 3 of Article 142 of the Labor Code of the Russian Federation).

In connection with the suspension of work, in the work time sheet (form T-12, approved by Decree of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1), the code “NZ” or “36” should be indicated for all days of suspension of work.

For your information:

During the period of suspension of work due to a delay in payment of wages, the employee retains average earnings(Part 4 of Article 142 of the Labor Code of the Russian Federation).

Here is a sample notification by an employee of the employer about the suspension of work due to a delay in payment of wages for a period of more than 15 days.

To the Director of Matrix LLC

O. S. Borisov

from a senior sales specialist

O. P. Emelina,

residential address: 603155, N. Novgorod,

st. Kovalikhinskaya, 72, apt. 151,

tel.: +79021111111

Notice of suspension of work

In accordance with Part 2 of Art. 142 of the Labor Code of the Russian Federation, I notify you in writing that due to the delay in payment of wages for a period of more than 15 days, I am suspending work for the entire period until the delayed amount is paid.

I inform you that during the period of suspension of work I will be absent from my workplace during my working hours. For the entire period of suspension of work, I ask you to maintain my average earnings.

The date of suspension of work is October 28, 2018.

The date the debt arose was 10/11/2018.

total amount debt – at least 65,250 rubles.

The total duration of the debt is at least 18 calendar days.

I ask you to pay the amount of saved average earnings on the days when wages are issued. On the results of consideration of the notification and measures taken regarding the repayment of arrears of wages, please inform me in the prescribed manner.

An employee who was absent from the workplace during the period of suspension of work is obliged to begin work no later than the next working day after receiving written notification from the employer of readiness to pay the delayed wages on the day the employee returns to work (Part 5 of Article 142 of the Labor Code of the Russian Federation).

Here is a sample notification to an employee about the payment of delayed wages.

Limited Liability Company "Matrix"

(Matrix LLC)

Senior Sales Specialist

O. P. Emelina

31.10.2018 № 21

Notice of payment of delayed wages

Dear Oleg Petrovich!

We notify you of the readiness of Matrix LLC to fully repay wage arrears for September 2018. Payment will be made on the day you return to work.

In accordance with Part 5 of Art. 142 of the Labor Code of the Russian Federation You are obliged to go to work no later than the next day after receiving this notice. Your absence from work without good reasons the day following receipt of this notice will be considered as absenteeism and may serve as the basis for applying disciplinary measures against you, up to and including dismissal under paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Director Borisov O. S. Borisov

The employer has the right to dismiss an employee for absenteeism if he does not appear at the workplace without good reason on the next working day after receiving notification of the employer’s readiness to pay him the delayed wages or transfer them (clause “a”, paragraph 6 of Part 6). 1 Article 81 of the Labor Code of the Russian Federation).

Let us note that there are arbitrator decisions that found it unlawful in a situation where an employee did not go to work after partial repayment of the debt (appeal rulings of the Nizhny Novgorod Regional Court dated 03/20/2018 in case No. 33-2117/2018, St. Petersburg City Court dated 17.05 .2016 No. 33-9739/2016, Determination of the Moscow City Court dated January 24, 2014 No. 4g/3-51/14). The arbitrators proceed from the fact that the period of suspension of work lasts until the debt is fully repaid. Payment of its part does not interrupt this period and is not the basis for the employee to resume work. However, he is not obliged to repeatedly notify the employer of the suspension of work.

Bringing to administrative and criminal liability.

Administrative liability for non-payment or incomplete payment on time of wages and other amounts carried out within labor relations(if these actions do not contain a criminal offense), established in parts 6, 7 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Currently, Part 6 of this article provides for liability in the form of a warning or a fine in the amount of:

for officials - from 10,000 to 20,000 rubles;

for individual entrepreneurs – from 1,000 to 5,000 rubles;

for legal entities – from 30,000 to 50,000 rubles.

A person who was previously subject to administrative punishment under Part 6 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation and has repeatedly committed a similar offense may be prosecuted under Part 7 of this article. In this case, he faces punishment:

for officials - a fine in the amount of 20,000 to 30,000 rubles. or disqualification for a period of one to three years;

for individual entrepreneurs – a fine in the amount of 10,000 to 30,000 rubles;

for organizations - a fine in the amount of 50,000 to 100,000 rubles.

If an administrative offense has been committed and the officials through whose fault it was committed are identified, they can be held administratively liable under the same norm as entity, and the specified officials (part 3 of article 2.1 of the Code of Administrative Offenses of the Russian Federation, paragraph 1 of paragraph 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 24, 2005 No. 5).

Criminal liability for non-payment of wages threatens the manager if he acted out of selfish or other personal interest (Article 145.1 of the Criminal Code of the Russian Federation).

In case of partial non-payment of wages, pensions, scholarships, benefits and other established by law sums the manager is threatened with (part 1 of this article):

a fine of up to 120,000 rubles. or in the amount of wages (other income of the convicted person) for a period of up to one year;

deprivation of the right to hold certain positions or exercise certain activities for a period of up to one year;

forced labor for up to two years;

imprisonment for up to one year.

Partial non-payment means making a payment in the amount of less than half of the amount payable (note to Article 145.1 of the Criminal Code of the Russian Federation).

In case of complete non-payment of wages, pensions, scholarships, allowances and other amounts established by law for more than two months or payment of wages for more than two months in an amount lower than established federal law The minimum wage for the manager is threatened (Part 2 of this article):

a fine in the amount of 100,000 to 500,000 rubles. or in the amount of wages (other income of the convicted person) for a period of up to three years;

forced labor for a term of up to three years with or without deprivation of the right to hold certain positions or carry out certain activities for a term of up to three years;

imprisonment for a term of up to three years with or without deprivation of the right to hold certain positions or carry out certain activities for a term of up to three years.

If non-payment (partial or complete) has resulted in grave consequences, the head of the organization (branch, representative office, separate (structural) unit) may be held liable in the form (Part 3 of Article 145.1 of the Criminal Code of the Russian Federation):

a fine in the amount of 200,000 to 500,000 rubles. or in the amount of wages (other income of the convicted person) for a period of one to three years;

imprisonment for a term of two to five years with or without deprivation of the right to hold certain positions or carry out certain activities for a term of up to five years.

Both administrative and criminal liability can occur only in the presence of guilt (Article 2.1 of the Code of Administrative Offenses of the Russian Federation, Article 14 of the Criminal Code of the Russian Federation). Non-payment of wages entails criminal liability only if the organization has funds and the non-payment is due to self-interest or other personal interest of the head of the organization (branch, representative office, separate (structural) unit).

The employer's financial liability for delayed payment of wages involves not only compensation for earnings not received by the employee, but also payment of additional interest (monetary compensation). Payment of compensation is due even if the employer is late with payments by only a few days. If payment is delayed by more than 15 days, the employee has the right to suspend work. Administrative liability for delays in payment of wages is established in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, while the fine for this violation committed for the first time reaches 50,000 rubles. A manager may face criminal liability for non-payment of wages if he acted out of selfish or other personal interest. If an employee applies for a delay in the payment of his salary to the State Tax Inspectorate, an unscheduled inspection of the organization may be carried out.

Regulations on federal state supervision of compliance with labor legislation and other regulatory legal acts containing standards labor law, approved Decree of the Government of the Russian Federation dated September 1, 2012 No. 875 (as amended on April 30, 2018).

PBU 10/99 “Expenses of the organization”, approved. By Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 33n.

Instructions for the use of the Chart of Accounts for accounting financial and economic activities of organizations, approved. By Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n.

Today, many organizations, including educational ones, are trying to save money. Some decide to take the extreme step of withholding wages to employees. Of course, circumstances are different, but it should be remembered that no economic difficulties are an excuse for inspection authorities and the court. Since negative consequences are envisaged for violators, rest assured: you will have to answer.

What does it mean to delay your salary?

Employees must be paid every six months. This rule is established by the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). Paydays must be established by local regulations. Special rules apply to the payment of vacation pay and settlements upon dismissal.

Table 1 shows the days when the employer must pay the employee wages, vacation pay, benefits and other amounts.

Table 1. Days of payment of amounts due to the employee

It must be remembered that a delay in the payment of wages in full, even for one day, is a violation of the requirements of labor legislation.

Payment of monetary compensation

note

It is necessary to calculate compensation for late payment of wages and other amounts even in cases where payments are not made on time at the request of the employee, due to the fault of the bank and in other situations

If the deadline for payment of any amounts due to the employee is violated, the employer (in our case, an educational organization) must pay them with interest (monetary compensation). The following points must be taken into account.

1. Payment of compensation is an obligation, not a right of the employer.

The employer is obliged to notify each employee in writing about all components wages and amounts of other amounts accrued to him ( Part 1 Art. 136 Labor Code of the Russian Federation). Monetary compensation for violation of the established payment deadline must be indicated on the payslip.

2. The employer is obliged to pay compensation regardless of the presence of fault ( Art. 236 Labor Code of the Russian Federation).

Example. The school promptly transferred funds to pay salaries to the bank, but they were credited to the employees’ cards late due to the bank’s fault.

Is it necessary to accrue compensation for days of late payment?

Yes need. Writing off funds from the organization's current account on the day specified in the employment contract does not fulfill the obligation to pay wages to employees, since the employee has the opportunity to receive wages from the day it is received in his account. bank card. Accordingly, a delay in wages due to the bank’s untimely transfer of money to employees’ cards will constitute a violation of the established deadlines for payment of wages. Responsibility for this violation to the employees of the organization will be borne not by the bank (it is not a party to the labor relationship), but by the employer.

The right to suspend work does not depend on whether the organization is to blame for non-payment of wages or not ( clause 57 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2“On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

The period of such notification is not provided for by law, which means it can be any. For example, an employee can write a statement and immediately leave the workplace.

In this case educational organization the following negative consequences await.

The court will initiate a case if the debt to pay wages or benefits is at least 300 thousand rubles. ( clause 2 art. 6 of Law No. 127-FZ).

If an organization does not have enough funds to pay off wage arrears for more than three months, its head must submit an application to the arbitration court(Article , Law No. 127-FZ).

Criminal liability

Criminal legislation also provides for liability for non-payment of wages, pensions, scholarships, benefits and other payments. Table 3 shows the types of relevant crimes and punishments.

Table 3. Types of criminal liability for late payment of wages

An important circumstance: non-payment of wages entails criminal liability only if the organization has funds and the non-payment is due to self-interest or other personal interest of the manager (branch, representative office, separate structural unit).

Disciplinary and property liability

note

The employer is obliged to consider such a statement from the representative body and report the results.

If the fact of violation is confirmed, the employer is obliged to apply to the head of the organization, its structural unit, and their deputies disciplinary action up to and including dismissal.

In addition, the employer has the right to recover losses from the person performing the functions of the sole executive body of the organization if they arose in connection with violation of the terms of payment of wages and compensation.

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