How is the advance paid after the vacation. Salary advance if the employee was on vacation
The question of whether it is necessary to pay an advance to an employee if he is on vacation arises from the inaccuracy of generally accepted formulations. The labor legislation does not say anything about such a concept as "".
However, everyone knows that this is cash paid for the first half of the current month.
How to pay if during this period there is an absence of an employee in connection with a legal vacation?
Is it necessary if a person had a rest in the billing period?
Let's consider several situations:
- when the first vacation day falls on the first part of the month;
- when the vacation starts in the second half;
- when the employee rests for the entire month.
In the first half
To deal with this issue, we will consider two cases.
Example 1
A person throughout the entire period for calculation, namely from the 1st to the 15th, is on vacation. On the 15th, the accounting department must accrue an advance payment to employees.
This employee in the timesheet for the first 15 days has a no-show note with the OT code (vacation).
Obviously, the employee does not have time worked during this period, which means that he is not entitled to an advance payment.
Example 2
The worker went out another vacation 5th. In the timesheet, the employee has 4 days, from the 1st to the 4th inclusive.
This means that on the 15th, the employee must be given an advance in proportion to the days worked, that is, at the rate of 4 days worked.
Thus, we can conclude that if the employee’s vacation starts in the first half, then he will be entitled to an advance if there are days worked in the first 15 days.
If this period falls entirely on vacation, then the payment is not due. If there are working days, then you need to pay funds for them.
In the second
Let's consider another example.
The employee went on vacation on the 16th. Until the end of the month he will be on another vacation.
In the time sheet from the 1st to the 15th, the employee has working days. Obviously, the advance payment to the employee must be paid in accordance with the hours worked, that is, in full size normally.
Vacation pay will be issued to the employee separately, no later than three days before the start of the vacation (the 13th day). The amount of vacation pay will be included in the calculation at the end of the month, minus the amounts issued (vacation + advance payment).
Thus, if the start of the vacation falls on any day of the second half of the month, then the money for the current month must be paid in full.
As for the advance payment for the next month, you need to look at what day the employee will go to work, and accrue funds in accordance with the days worked.
The entire month
Since the employee does not have time worked on vacation, then wage he is neither charged nor paid.
Accordingly, in this situation Money employee does not receive
And he will not receive a salary either for the first or for the second part of the month, as there will be no working days.
But he will be paid vacation pay for the entire period.
In accordance with part 6 of article 136 of the Labor Code of the Russian Federation, the employer is obliged to pay wages to employees at least every half a month a day, the rules of the internal work schedule, collective and labor contracts.
How to fulfill this requirement if the employee, for some reason, did not actually work at that time? Rostrud specialists recommend that employers, in addition to formally fulfilling the requirements of Article 136 of the Labor Code of the Russian Federation on the payment of wages at least twice a month, take into account the time actually worked by the employee (actually performed work) when determining the amount of the advance payment (letter of Rostrud dated 08.09.2006 No. 1557-6) .
Has the right to receive an advance - if in the first half of the month he worked at least one day;
He will not receive an advance payment - if he did not work a single day in the first half of the month (for example, he was on vacation).
In this case, the norm of part 6 of article 136 of the Labor Code of the Russian Federation on the payment of wages at least twice a month is not violated, because the Labor Code does not require an advance payment to the employee for hours not actually worked.
If an employee worked at least one day before or after the vacation, the amount of his advance payment will depend on which payroll method is adopted in the organization:
- - the amount of the advance depends on the actual hours worked;
Advance - the amount of the advance does not depend on the actual hours worked.
The provision on the procedure for paying wages (advance) must be included in the collective agreement, internal labor regulations, labor contracts with employees (letter of Rostrud dated 08.09.2006 No. 1557-6).
Salary for actual hours worked
If the payment of wages for the first half of the month is made to employees for the time actually worked, this will be wages. It is accrued to the employee based on the amount of his salary and the number of days actually worked in the first half of the month indicated in the time sheet according to unified form No. T-12 (T-13) or a form independently developed by the employer.
Example. M.P. Granatov works at Gifts of Leta LLC. IN collective agreement organization, internal labor regulations, employment contract with M.P. Granatov found that wages for the first half of the month are calculated for the time actually worked by the employee. From 2 to 8 September 2013 M.P. Granatov was on annual paid leave. In what amount will he receive an advance payment for the first half of September 2013 (payment is made on September 16, 2013), if his monthly salary is 30,000 rubles, and production calendar for 2013 in September 21 working days?
According to the time sheet for the period from September 1 to September 15, 2013 M.P. Granatov worked 5 working days. The employee will receive wages for the first half of the month in the amount of 7143 rubles. (30,000 rubles: 21 working days × 5 working days).
When calculating wages for actual hours worked, the employee will receive less in those months calendar year, in which in the first half of the month there are days off and non-working holidays (in January, March, May, June and November).
At the same time, the amount of wages for the month will not change from this, since it does not depend on the presence of non-working employees in the calendar month. public holidays(part 4 of article 112 of the Labor Code of the Russian Federation).
The downside of the calculation method of payroll is that not all organizations can apply it in practice. In particular, this will be difficult for companies in which:
The salary of an employee depends on the result of his work for the month, so it is impossible to objectively calculate the interim payment;
There is separate divisions in the regions and there is no possibility to receive timesheets twice a month.
Advance payroll method
With the advance method, wages for the first half of the month and the second should be accrued in approximately equal amounts (excluding bonus payments). Such a ratio of monthly salary payments is recommended in the letter of the Ministry of Health and Social Development of Russia dated February 25, 2009 No. 22-2-709.
But the most optimal ratio of payments is 40% of the monthly salary. This amount of the advance was obtained by calculation. If we take into account that after withholding personal income tax, the employee receives 87% of the salary, then half will be 40% of the monthly salary (87%: 2 = 43.5%). The advance paid in this amount is as close as possible to the employee's salary.
Example. Let's use the condition of the example above, but change the method of calculating the advance. In the collective agreement of the company, the internal labor regulations, the employment contract with M.P. Granatov found that the salary for the first half of the month is 40% of the salary. In what size M.P. Granatov will receive an advance for the first half of September 2013?
With the advance method of calculating wages, it does not matter how many days M.P. worked. Pomegranates for the period from 1 to 15 September 2013. Therefore, M.P. Granatov will receive an advance payment of 12,000 rubles. (30,000 rubles × 40%).
The downside of the advance payroll method can be called a possible overpayment to an employee of wages if he receives an advance for actually not worked time (for example, for days of temporary disability) or quits in the period from the date of the advance payment for the first half of the month to the end of the month. However, the amount of the unworked advance payment issued on account of the payment of wages, the employer may withhold from the employee's wages on the basis of paragraph 2 of part 2 of Article 137 of the Labor Code of the Russian Federation. The employer has the right to take the decision to withhold (part 3 of article 137 of the Labor Code of the Russian Federation and letter of the Federal Tax Service of Russia for the city of June 30, 2008 No. 20-12 / 06114):
Not later than one month from the date of expiration of the period established for the return of the advance;
Provided that the employee does not dispute the grounds and amounts of deduction.
Hello! In our company, an employee decided to go on another vacation from August 16 to August 31. We paid him vacation pay as it should be in three days. According to the schedule, we have an advance payment on August 20th and wages for the 2nd half of August are paid on September 05th. When we are obliged or when we can pay him wages for the 1st half of August - in advance, on the day of issuing vacation pay, or is it possible for us to pay him wages for the period from August 01 to August 15 (advance payment) paid - on September 5th ? And if we have to pay an advance on the appointed date of the advance for the enterprise, then what if the employee is on vacation during this period, and he receives the advance at the checkout? How to be in such a situation, call an employee from vacation? Explain, please.
Answer
According to part 6 of Art. 136 of the Labor Code of the Russian Federation Wages are paid at least every half a month on the day established by the internal labor regulations, collective agreement, labor contract.
Vacation payment is made no later than three days before its start (part 9 of article 136 of the Labor Code of the Russian Federation).
If it is established in your organization that wages for the first half of the month are paid on the 20th of the current month, and wages for the second half of the month are paid on the 5th of the next month, then when an employee is granted leave from August 16 to 31, you must pay no later than August 13, and you can pay wages for the first half of the month on August 20 or together with vacation pay (in the second case, the employee will not have to come to work to receive wages from the cash desk).
Payment of wages for the first half of the month on September 05 will be a violation of labor laws.
Details in the materials of the System:
1. Answer: When is the employer obliged to pay wages
The organization must pay salaries in deadlines ().
Payment terms must be fixed in one of the internal documents:
Attention: representatives of official departments recommend not to postpone.
Nina Kovyazina
2. Answer: When is the salary advance and final payment due?
Specific dates for the payment of wages by labor legislation are not established. At the same time, representatives of regulatory agencies recommend that the advance payment should be made in the middle of the month: on the 15th-16th day, and the final payment - no later than the 1st-2nd day of the next month.
A similar position is taken by individual courts (see, for example,). They believe that the advance must be paid on the 15th or 16th day of the calendar month, depending on the number of days in a given month (30 or 31). And finally pay off the salary to the employee - no later than the last day of the month.
Specialists of the Ministry of Labor of Russia, in their oral explanations, recognize as acceptable the final calculation of wages for the worked month at the beginning of the next month, but no later than the 1st or 2nd day.
Attention: at the same time, there is another position, according to which it is permissible to pay an advance even later than the 15th or 16th day, for example, the 20th day of the calendar month, and the salary for the worked month - the 5th day of the next month.
This is explained by the fact that the legislation does not establish specific dates for the payment of salaries. The only requirement is to pay it at least twice a month. To avoid violating this requirement for newcomers admitted in the first days of the month, in organizations where the advance is paid later than the 15th or 16th, they provide for the first month another additional payment (on the 15th) and fix this rule in internal documents. Pay more often than twice a month by law.
Under such conditions, violations do not occur, even if the remaining payments - advance payment and final settlement - fall on later dates than those recommended by the authorities.
The courts do not see anything illegal in such an approach either (see, for example, appeal rulings,).
At the same time, leave the advance payment completely for last days months (after the 20th day) is still not recommended, since the meaning of the very concept of “a salary advance for the month” is lost, although there is no direct prohibition in the legislation for such payment terms.
Given the above, the employer must independently determine the dates for the payment of salaries and write them in the documents. To avoid disagreements with inspectors, pay the advance in the middle of the month (15th or 16th), and pay the salary for the month worked on the 1st or 2nd of the next month. Meanwhile general practice, which has developed to date, indicates that it is quite acceptable to pay an advance before the 20th, and a salary, respectively, until the 5th. However, it should be borne in mind that such an approach in some cases may cause claims of inspectors, including bringing them to court proceedings.
Nina Kovyazina
Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia
Article 136 of the Labor Code of the Russian Federation, the employer is obliged to pay wages to employees at least every half a month on the day established by the internal labor regulations, collective and labor agreements.
How to fulfill this requirement if the employee, for some reason, did not actually work at that time? Rostrud specialists recommend that employers, in addition to formally fulfilling the requirements of Article 136 of the Labor Code of the Russian Federation on the payment of wages at least twice a month, take into account the time actually worked by the employee (actually performed work) when determining the amount of the advance payment (letter of Rostrud dated 08.09.2006 No. 1557-6) .
Has the right to receive an advance - if in the first half of the month he worked at least one day;
He will not receive an advance payment - if he did not work a single day in the first half of the month (for example, he was on vacation).
Salary for actual hours worked
If the payment of wages for the first half of the month is made to employees for the time actually worked, this will be wages. It is accrued to the employee based on the amount of his salary and the number of days actually worked in the first half of the month indicated in the time sheet in the unified form No. T-12 (T-13) or a form independently developed by the employer.
Example. M.P. Granatov works at Gifts of Leta LLC. In the collective agreement of the organization, the internal labor regulations, the employment contract with M.P. Granatov found that wages for the first half of the month are calculated for the time actually worked by the employee. From 2 to 8 September 2013 M.P. Granatov was on annual paid leave. In what amount will he receive an advance payment for the first half of September 2013 (payment is made on September 16, 2013), if his monthly salary is 30,000 rubles, and according to the production calendar for 2013 in September 21 working days?
According to the time sheet for the period from September 1 to September 15, 2013 M.P. Granatov worked 5 working days. The employee will receive wages for the first half of the month in the amount of 7143 rubles. (30,000 rubles: 21 working days × 5 working days).
When calculating wages for the hours actually worked, the employee will receive less in those months of the calendar year in which there are days off and non-working holidays in the first half of the month (in January, March, May, June and November).
At the same time, the amount of wages for the month will not change from this, since it does not depend on the presence of non-working holidays in the calendar month (part 4 of article 112 of the Labor Code of the Russian Federation).
The downside of the calculation method of payroll is that not all organizations can apply it in practice. In particular, this will be difficult for companies in which:
The salary of an employee depends on the result of his work for the month, so it is impossible to objectively calculate the interim payment;
There are separate subdivisions in the regions and there is no possibility to receive timesheets twice a month.
Advance payroll method
With the advance method, wages for the first half of the month and the second should be accrued in approximately equal amounts (excluding bonus payments). This ratio of earnings payments per month is recommended in the letter of the Ministry of Health and Social Development of Russia dated February 25, 2009 No. 22-2-709.
But the most optimal ratio of payments is 40% of the monthly salary. This amount of the advance was obtained by calculation. If we take into account that after withholding personal income tax, the employee receives 87% of the salary, then half will be 40% of the monthly salary (87%: 2 = 43.5%). The advance paid in this amount is as close as possible to the employee's salary.
Example. Let's use the condition of the example above, but change the method of calculating the advance. In the collective agreement of the company, the internal labor regulations, the employment contract with M.P. Granatov found that the salary for the first half of the month is 40% of the salary. In what size M.P. Granatov will receive an advance for the first half of September 2013?
With the advance method of calculating wages, it does not matter how many days M.P. worked. Pomegranates for the period from 1 to 15 September 2013. Therefore, M.P. Granatov will receive an advance payment of 12,000 rubles. (30,000 rubles × 40%).
The downside of the advance payroll method can be called a possible overpayment to an employee of wages if he receives an advance for actually not worked time (for example, for days of temporary disability) or quits in the period from the date of the advance payment for the first half of the month to the end of the month. However, the amount of the unworked advance payment issued on account of the payment of wages, the employer may withhold from the employee's wages on the basis of paragraph 2 of part 2 of Article 137 of the Labor Code of the Russian Federation. The employer has the right to make a decision on retention (part 3 of article 137 of the Labor Code of the Russian Federation and letter of the Federal Tax Service of Russia for Moscow dated June 30, 2008 No. 20-12 / 06114):
Not later than one month from the date of expiration of the period established for the return of the advance;
Provided that the employee does not dispute the grounds and amounts of deduction.
Each company is obliged to comply with the legislation regarding the remuneration of its employees, and therefore the logical question is how the advance payment after the vacation should be accrued. To begin with, we note that a certain amount is paid for the hours worked, which can be distributed during the month. If a company in any way violates the rights of its employees, then it may have serious problems with the tax service and other authorities. Do I need to pay an advance to a person who has just returned from vacation? How are charges made? Today we provide answers to these and other questions.
Advance payments are parts of wages that are paid to an employee for the first 15 days of work each month. If you turn to labor law, then there is no clear concept and regulation of the payment of advances. However, the accrual procedure can be described in internal documents at the enterprise, as well as in labor agreements between the employer and employees.
Important! The Labor Code clearly states that the employer is obliged to pay wages to his employees at least twice a month. Ignoring this requirement will violate the rights of citizens. It is for this reason that quite often payments are divided into two parts: advance payment and salary.
The calculation of the amount is carried out by the responsible employee or department in the company. To do this, there are certain rules that must be observed. Thus, advance payments cannot exceed 50% of wages. This requirement is found not only in government documents but also in the company's internal documentation.
How to calculate how much advance is due? As for the minimum level, the advance payment should not be less than the wages for a certain number of shifts at the established rate. If such a situation arises, it can be considered as a violation, for which a certain responsibility is provided.
Let's take a look at how payments are made. There are two options for this:
- by the number of hours worked;
- as a percentage of total earnings.
So, if we are talking about the first method of accrual, then the number of hours and tariff rate which is provided in the documents. The employee is entitled to the amount, which can be calculated using the following formula: rate for one hour of working time * period * allowances. Having calculated all the components, we will get the final amount of the advance for the first half of the month.
The second method of accrual is performed differently, since a certain percentage of the total salary is taken into account here. As a rule, such a scheme is used in small companies. At the same time, the advance includes not only the amount for the hours worked, but also various allowances. This may be an additional payment for work above the norm, work in hazardous conditions etc.
Sometimes some enterprises have their own peculiarities of accruing an advance. The main condition is compliance with the requirements of the law. This type of payment does not include bonuses, different kinds help or allowances. As practice shows, the advance is lower than the base salary. We also note that the second calculation option is used more often, since it is simpler and allows you to more correctly evaluate the work of employees.
Quite often, in practice, it happens differently, and representatives government agencies give different recommendations in this regard. As a rule, the following approach is used: if a person was on vacation, then an advance payment is paid to him taking into account the time actually worked. In this case, certain features can be distinguished.