Increased fines for late wages. New wage law: strict payment deadlines and penalties for late Administrative liability for non-payment of wages

In July 2016, amendments were made to a number of legislative acts regulating labor relations. Among other things, new salary deadlines and penalties for late payment were established. We note that the commented amendments, including increasing fines for late wages, come into force on October 3, 2016 (Article 4 of the Law of July 3, 2016 N 272-FZ).

New salary terms

In accordance with the new edition of the Labor Code of the Russian Federation, effective from October 3, the employer is given 15 calendar days to pay wages from the end of the period for which it was accrued (for example, a month). And as before, it is indicated that the specific date for payment of wages must be established by internal labor regulations, a collective or labor agreement. That is, the payment date determined by the employer must fall on one of these 15 days (Clause 1, Article 2 of Law No. 272-FZ dated 07/03/2016, Article 136 of the Labor Code of the Russian Federation, as amended, valid from 10/03/2016).

New calculation of compensation for payment of wages late

The Labor Code of the Russian Federation provides for financial liability of the employer to employees for late payment of wages. The employer must pay compensation to everyone whose wages were delayed. Moreover, regardless of whether the delay was his fault. Until October 3, 2016, the amount of compensation is calculated based on 1/300 of the refinancing rate for each day of delay (Article 236 of the Labor Code of the Russian Federation).

But from October 3, 2016, the calculation procedure changes: interest must be calculated based on 1/150 of the key rate of the Central Bank - essentially the same refinancing rate (clause 2 of article 2 of Law dated July 3, 2016 N 272-FZ, article 236 of the Labor Code of the Russian Federation as amended, valid from 10/03/2016). In other words, legislators doubled the minimum established amount of compensation.

But in addition to compensation for delayed wages under the Labor Code in 2016, the employer will also have to pay fines.

Fines for late wages since 2016

Another important amendment is the changed amounts of fines for late wages in 2016. That is, in addition to increased compensation for workers, the employer will also have to pay new fines for delays in salaries to the budget.

The point is that the Code of Administrative Offenses now separately names such a type of violation as non-payment or incomplete payment of wages on time (Clause 1, Article 1 of Law No. 272-FZ of July 3, 2016).

As we can see, reports that the fine for delayed wages will soon increase are not fiction. And those employers who are regularly late in paying wages will face an even greater increase in late wage fines. Because for repeated violations, sanctions are established in a larger amount (

On October 3, 2016, the Federal Law of 07/03/2016 No. 272-FZ “On amendments to certain legislative acts of the Russian Federation on increasing the liability of employers for violation of legislation regarding wages” comes into force. The document was prepared by the Russian Ministry of Labor in order to increase the protection of workers from unscrupulous employers.

The need to adopt a Federal Law arose in connection with wage arrears to employees.

Thus, according to Rosstat, as of June 1, 2016, the total wage arrears amounted to 4,004 million rubles.

The main amount of wage arrears arose due to the organizations’ lack of their own funds - RUB 3,809 million. (98.5% of the total amount of overdue debt).

In the total volume of overdue wages, 38% falls on manufacturing, 22% on construction, 20% on transport, 6% on mining, 5% on agriculture, hunting and the provision of services in these areas, logging, 4% - for research and development.

The volume of overdue wages as of June 1, 2016 amounted to 1% of the monthly wage fund of workers in the observed types of economic activities. Based on the results of inspections by Rostrud, wage arrears are decreasing monthly.

What will change?

Federal Law No. 272-FZ amends the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation):

violations of non-payment of wages and other payments due to the employee are classified as a separate administrative offense;
fines increase for repeated violations.

note

According to the current version of the Code of Administrative Offenses of the Russian Federation, for violations of non-payment of wages and other payments due to an employee, the employer is held administratively liable on the basis of Part 1 of Art. 5.27. In the new edition, employers will be prosecuted for these violations on the basis of Part 6 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Thus, if as a result of the inspection, in addition to violations regarding delayed payment of wages, other violations of labor legislation and other regulatory legal acts containing labor law norms are revealed, then several fines may be imposed on the employer at the same time: as under Part 1 of Art. 5.27, and according to Part 6 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, as well as on other grounds specified in other parts of this article.

Fines for non-payment of wages increased

In accordance with Part 1 of Art. 142 of the Labor Code of the Russian Federation, the employer and (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. In this case, liability arises when wages are delayed both for one employee and for a group of employees.

In the new edition of the Code of Administrative Offenses of the Russian Federation (Part 6, Article 5.27), the amount of fines for violations of labor legislation has been increased compared to those currently in force.

For repeated violations, the penalties are even stricter.

Information on administrative liability for late payment of wages is presented in summary form in the table.

Amounts of fines for late payment of wages

Our information

Disqualification is the deprivation of an individual of the right to occupy certain positions or engage in certain activities. The decision to disqualify officials is made by the court based on the materials of the inspection of the control and supervisory authority.

As a rule, for violations of non-payment of wages, the employer (the head of the organization - general director, director, president, etc.) is currently brought directly to justice. Therefore, when temporarily replacing a manager, a person will be involved who, in accordance with the order (instruction) of the manager, is entrusted with performing duties during his absence.

In addition, the chief accountant can also be held accountable for delays in wages if he is directly at fault, for example, for late payment of wages or non-payment of vacation pay.

But control and supervisory authorities, as a rule, do not attract personnel workers for non-payment of wages. But the manager has the right to bring the personnel employee to disciplinary liability based on the results of the inspection if his guilt is established.

Fines for these violations must be transferred by the official to the account of the control and supervisory authority within the period specified in the fine resolution, otherwise the funds are withheld from the salaries of the involved officials by the bailiff service.

note

The employer does not have the right to withhold fines from supervisory authorities from employees' wages.

The adoption of a decision by the control and supervisory body to impose fines on officials does not prohibit the imposition of a fine at the same time on the employer - a legal entity (IP). In this case, payment of the fine is made at the expense of the legal entity (IP), also on a voluntary basis or in the manner of enforcement proceedings.

Cash compensation to employees for non-payment of wages has been increased

Federal Law No. 272-FZ also contains amendments to the Labor Code of the Russian Federation and the Civil Procedure Code of the Russian Federation, aimed at preventing late payment of wages.

Article 236 of the Labor Code of the Russian Federation in the new edition provides that if the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with payment of interest, the amount of which has been increased (the additions made are highlighted underlining).

Thus, the employer’s liability has been doubled: from 1/300 to 1/150; In addition, the base reference point has been changed: instead of the refinancing rate, the key rate has been established.

Our information

The refinancing rate is an annual percentage indicator that characterizes the payment for credit resources (refinancing) provided by the Central Bank.

The key rate is the interest rate on the provision and withdrawal of liquidity by the Central Bank on an auction basis for a period of up to seven days.

Taking into account the new norm, employers need to make appropriate changes to collective agreements and local regulations and familiarize employees with them in the manner prescribed by law.

Changes are made to employment contracts only if the employer’s obligation to pay compensation in accordance with Art. 236 of the Labor Code of the Russian Federation was included in the employment contract as one of its conditions.

The amount of monetary compensation paid to an employee may be increased by a collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault. These rules, contained in the current version of Art. 236 of the Labor Code of the Russian Federation, remain in the same form in the new edition of this article.

Administrative, criminal and financial liability for late payment of wages

Measures of administrative, criminal and financial liability for late payment of wages to employees are also provided for by current legislation.

State labor inspectorates carry out inspections of employers' compliance with wage legislation, following which the perpetrators are brought to administrative responsibility in the form of a fine. If wages are not paid for more than three months, the inspection materials are sent to the investigative authorities to consider whether to initiate a criminal case.

In addition to administrative liability, for non-payment of wages out of selfish or other personal interest, criminal liability is provided, including imprisonment for a period of one to three years (Article 145.1 of the Criminal Code of the Russian Federation).

In order to increase the efficiency of ongoing activities, interaction with territorial law enforcement and tax authorities and branches of extra-budgetary funds has been strengthened, and the activities of interdepartmental regional commissions on issues of repayment of wage arrears have been intensified.

Let us note that if during the inspection the employer presents evidence that he is not directly at fault (for example, lack of funding from a superior organization to which the employer has repeatedly contacted), then the control and supervisory authority notifies the superior organization of the results of the inspection and the adoption of appropriate measures to eliminate wage arrears .

Salaries for the month worked from October 3 must be paid no later than the 15th day of the month following the month worked.

Salaries are paid at least every half month (part six of Article 136 of the Labor Code of the Russian Federation). Other deadlines for payment of wages may be established for certain categories of workers by federal law (part seven of article 136 of the Labor Code).

Thus, the Labor Code in its current version establishes a requirement for a maximum interval between wage payments, without regulating specific terms for its payment. At the same time, labor legislation does not limit the ability to pay wages to all employees more than once every half month.

The new edition of Article 136 of the Labor Code of the Russian Federation (part six) clarifies the deadline for the employer to establish the payment of wages (the specific date of payment of wages): no later than 15 calendar days from the end of the period for which it was accrued. That is, the date of payment of wages, which is established by internal labor regulations, a collective agreement or an employment contract, cannot be set later than 15 days from the end of the period for which it was accrued.

Therefore, the latest date for payment of wages is the 15th day of the month following the month for which wages are calculated.

In this regard, employers have the right to clarify specific terms for payment of wages in the internal labor regulations, collective agreement, and, if necessary, in other local regulations (for example, in the Regulations on remuneration) in the manner established by the Labor Code of the Russian Federation. Taking into account the fact that the terms of remuneration are a mandatory condition of the employment contract, we believe that if it is necessary to change the terms, it will be necessary to make appropriate changes to the employment contracts by concluding additional agreements to them in the manner established by the Labor Code of the Russian Federation, before October 3 of this year.

Specific terms for payment of wages in the employment contract from October 3 may not be indicated

In accordance with part six of Art. 136 of the Labor Code of the Russian Federation in the current version, it is necessary to indicate specific terms for the payment of wages, including wages for the first half of the month (specific dates of the month), both in the internal labor regulations, and in the collective agreement, and in the employment contract.

In the new version of Art. 136 of the Labor Code of the Russian Federation is proposed to indicate these terms in the internal labor regulations, collective agreement or employment contract. That is, if specific terms for payment of wages are specified in the internal labor regulations or a collective agreement, they may not be indicated in the employment contract.

This amendment was made to simplify the registration of labor relations, since in accordance with part three of Art. 68 of the Labor Code of the Russian Federation, when hiring (before signing an employment contract), the employer is obliged to familiarize the employee, against signature, with the internal labor regulations, other local regulations directly related to the employee’s work activity, and the collective agreement.

Also in these documents it is necessary to secure the right to receive wages at least twice a month, taking into account the time worked for newly hired employees.

Important!

Let us remind you that in the internal labor regulations, the collective agreement and the employment contract it is necessary to indicate specific dates for the payment of wages, for example: “Wages are paid to employees on the 3rd day for the second half of the month following the month worked, and on the 18th day - for the first half of the current month.” .

There will be more unscheduled inspections of employers

The powers of state labor inspection bodies have been expanded to conduct unscheduled inspections of employers.

Thus, paragraph four of part seven of Art. 360 Labor Code of the Russian Federation (underlined):

An unscheduled on-site inspection on the specified grounds may be carried out immediately with notification to the prosecutor's office in the manner prescribed by federal law, without coordination with the prosecutor's office.

By the way

According to Rostrud, in January-May 2016, the total number of inspections that resulted in violations being detected was 33.6 thousand, of which 14.5 thousand violations were related to wages.

According to the results of the audits, overdue wages were paid to more than 322 thousand employees, in a total amount of about 8.4 billion rubles.

The statute of limitations for appeals about non-payment to the court has been increased to one year

Article 392 of the Labor Code of the Russian Federation has been supplemented with part two (highlighted).

In the previous version, the specified period was three months.

Thus, the limitation period, which, as a general rule, remains, as before, three months, for claims for non-payment is increased to one year.

Claims for labor disputes can be filed in courts at the place of residence

Article 29 of the Civil Procedure Code of the Russian Federation, as amended, coming into force on October 3, 2016, provides for the right to file a claim in labor disputes at the employee’s place of residence (part nine).

Resume of the scientific editor of the magazine “Personnel Solutions” I.V. Zhuravleva

We analyzed in detail the text of Federal Law No. 272-FZ and saw in it the following

According to the wording of Article 136 of the Labor Code of the Russian Federation:

“Wages are paid at least every half month” - this norm remains the same.
There is no longer any doubt that vague instructions regarding the payment of wages (“from... to...”, “not earlier than...”, “not later than...”) are unacceptable. “The specific date for the payment of wages is established by internal labor regulations, a collective agreement or an employment contract...” - this rule has been improved: the union “or” has been introduced into it, which eliminated discrepancies and clearly showed that the employer has the right to choose any of the documents listed in it.
“The specific date for the payment of wages is set... no later than 15 calendar days from the end of the period for which it was accrued” - a maximum period has been established for settlements with employees for the period worked, that is, it is unacceptable to pay wages for the month worked later than the 15th day of the month, next to the spent one.

New edition of Art. 236 Labor Code of the Russian Federation:

increases the employer's responsibility for delayed payment of wages, the type of rate of the Central Bank has been changed, the amount of monetary compensation for each day of delay has been doubled;
clarifies that in case of partial payment of amounts due to the employee, the employer is responsible for the unpaid amounts.

Article 392 of the Labor Code of the Russian Federation supplemented by part two, which established the longest claim period for claims for non-payment of wages.

In Article 29 of the Civil Procedure Code of the Russian Federation Changes have been made to provide employees with the right to go to court at the employee’s place of residence.

T.V. Malenko,
deputy Director of the Department of Remuneration, Legal Relations and Social Partnership of the Ministry of Labor and Social Protection of the Russian Federation

All employers want employees to do their jobs conscientiously. However, managers themselves are often in no hurry to comply with their obligations to pay employees on time and in full. In this regard, the question of possible ways to influence an unscrupulous employer arises. The current legislation provides for serious liability for violating the rules of settlement with employees: a fine for non-payment of wages, including interest for each day of delay, and other penalties up to and including restriction of freedom.

Article 142 of the Labor Code of the Russian Federation states the following: employees, regardless of place of employment, position and schedule, must receive wages at least twice a month (once every 2 weeks). However, the law does not name specific dates. They are installed individually in each company and approved by the relevant local regulatory documents of the enterprise:

Employment contract;
Collective agreement or other document;
Rules and regulations of the internal regulations of the organization.

At the same time, the Labor Code of the Russian Federation clarifies that if the date of receipt of wages falls on a non-working day (day off, holiday), then it must be paid in advance. Delay of salary is not allowed. Even if other rules are prescribed in the TD with an employee or in another regulatory act of the organization, they do not comply with the norms of the Legislation and are not subject to execution.

From the very first day of delay in payment of wages, the employer may be held liable. And if employees do not receive wages for 16 days or more, then on the basis of paragraph 3 of Article 142 of the Labor Code of the Russian Federation, they can suspend the performance of their labor functions. In this case, it is necessary to notify the head of the organization in writing. Employees retain the right to receive wages even for the time when they did not actually work.

Measures of employer liability for delay (non-payment) of wages

Employees have the right, approved by current legislation, to receive their salaries on time and in full. For violation of this right, the employer will be subject to material, administrative, and in some cases criminal liability.

Material liability

In accordance with Article 236 of the Labor Code of the Russian Federation, if an employer for some reason does not pay wages to employees on time, then he is subsequently obliged to reimburse them not only for the amount due, but also to compensate for the resulting delay. The amount to be reimbursed must be no less than 1/300 of the current refinancing rate established by the Central Bank of Russia of the total amount of the debt incurred, starting from the 1st day of delay and for all subsequent days.

How compensation is calculated

Employee salary – 25,000 rubles;

Salary delay period – 31 days;

The refinancing rate (from 01/01/2016 is equal to the key rate of the Central Bank of the Russian Federation) – 11% (1/300 = 0.0367%);

0.0367% of 25,000 = 9.175 rubles;

9.175 * 31 = 284.43 rub.

Based on the calculations made, the employer is obliged to pay the employee wages, taking into account compensation in the amount of 25,284 rubles. 43 kopecks

Financial punishment (a fine for late payment of wages) is applied to the employer, regardless of the reasons for violating the salary payment schedule and the formation of debt. Just 10 years ago (until the end of 2005), everything was completely different: in some cases, the employer was not required to pay interest. For example, if the employee himself did not want (refused) to receive his salary on time or money was stolen. Currently, the legislation does not provide for any concessions and imposes financial liability on the employer, even if the delay was not due to his fault.

It is worth noting that in accordance with the Resolution of the Plenum of the Supreme Court of Russia dated March 17, 2004, the injured employee retains the right to demand indexation of the salary amount taking into account the inflation rate at that time.

There are cases when it is not possible to voluntarily achieve repayment of debt and full payment of wages from the employer. There is only one way out - to file a corresponding lawsuit with the court demanding that the employer pay the money due, taking into account compensation.

Administrative responsibility

The Code of Administrative Offenses of the Russian Federation also provides for punishment for negligent employers for late payment of labor (Article 5.21). Thus, for officials and individual entrepreneurs, the fine for delayed salaries ranges from 1 to 5 thousand rubles. For organizations, a more serious liability is provided - from 30 to 50 thousand rubles.

During the first such incident, the losses are not very noticeable. But if the violation is committed twice or more often, then penalties for managers/individual entrepreneurs will amount to 10–20 thousand rubles, for organizations 50–70 thousand rubles. For officials, the situation is further clouded by the fact that they may be deprived of the opportunity to hold leadership positions for up to 3 years.

Applications for administrative liability of officials, individual entrepreneurs and organizations are considered by the territorial department of the Labor Inspectorate. In addition, penalties may be imposed by the court.

Criminal liability

More serious liability (criminal) arises for the employer if for 3 months he gives employees wages only partially or does not pay them at all for 2 months. For this he will be subject to restriction of freedom, the maximum term of which is 5 years.

In cases where an employer (individual entrepreneur, official) does not pay wages to employees over a long period, the Criminal Code of the Russian Federation provides for certain liability. More specifically, in Art. 145.1 (Part 1) of the Criminal Code of the Russian Federation stipulates the following penalties for managers (and this is not only about the organization, this also applies to structural divisions and branches) and individual entrepreneurs for partial non-payment of salaries within three months:

fine for late wages, the amount of which can be up to 120 thousand rubles. or be equal to the amount of the annual salary (sometimes, along with material punishment, the official is deprived of the opportunity to occupy leadership positions, and the individual entrepreneur is prohibited from carrying out entrepreneurial activities for a period of 1 year);
direction to perform forced labor or restriction of freedom for up to 1 year.

If employees have not received their earned money for 2 months or more, then the manager (IP) will suffer a more serious punishment:

in this case, penalties for delayed wages vary from 100 to 500 thousand rubles. or equal to the amount of salary for 36 months (the opportunity to hold a managerial position is also limited to a three-year period);
The duration of forced labor or restriction of freedom also increases to 3 years.

Even more serious measures are applied to the employer (official, individual entrepreneur) if the delay in salary caused serious consequences. For example, a worker, left without a livelihood, committed suicide out of despair. Or his close relative fell seriously ill. There may be other reasons. Then the employer will suffer a more severe punishment. But this is only possible if irrefutable evidence is presented that what happened happened precisely in connection with the debt.

It is worth emphasizing that the employer is not held criminally liable in all cases. This is possible only when his selfish motives are proven. For example, if money intended to pay salaries by an employee was misappropriated or spent for other purposes (misappropriation).

Cases initiated under Article 145.1 of the Criminal Code of the Russian Federation are under the jurisdiction of the Investigative Committee. This means that an application to bring an individual entrepreneur, official or other employer to criminal liability must be sent there. You can go a slightly different route and first apply to the territorial department of the Labor Inspectorate. Then the supervisory authority will independently conduct an inspection of the case and, if the information is confirmed, will send the materials to the Investigative Committee.

Another option is to report to the local police department. Department of Internal Affairs officers will accept the document and forward it to the appropriate authority - the Investigative Committee.

My salary hasn't been paid, what should I do?

Under no circumstances should you let things slide. Delay of wages is a gross violation of current legislation. Therefore, it is necessary to understand the situation and defend your rights from the very first day of the delay. But you should not immediately run with complaints to the Labor Inspectorate and other authorities. It is better to start the proceedings with a conversation with the manager and/or chief accountant. You need to try to find out the reasons for what happened, find out the planned time frame for repaying the debt. If the conversation with officials was unsuccessful, you should move on to active action.

Contacting the Labor Inspectorate

There is no unified form for applications to the Labor Inspectorate. The document is written randomly. But it must certainly contain the following information:

full name of the employing organization or individual entrepreneur, full name of the director and chief accountant of the company (another person whose responsibilities include calculating salaries to employees);
the name of the applicant’s position, the duration of his work in the specified company;
the amount of wages due, the expected method and date of payment, the exact period of delay (in days).

In response to the received application, Labor Inspectorate employees assign an inspection to the violating company. If the information specified in the complaint is confirmed, then a corresponding order is sent to the head of the organization with a requirement to immediately eliminate the violation of the rights of employees (to pay wages) or a notice of non-compliance with the rules for paying wages is sent to law enforcement agencies and the Federal Tax Service.

Suspension of labor activity

If the salary is not paid to the employee for 15 days or more, then he has every right not to perform his work until the debt is repaid. But before you stop performing your job duties, you must notify your manager (employer) of your intentions. This must be done not orally, but in writing. The notification may look like an application addressed to the director (other official) with mandatory reasoning for the decision to temporarily stop working.

Important: a statement containing intentions to suspend the performance of labor duties should be written in two copies, one of which should be submitted directly to the manager (his secretary) against signature. If this condition is not met (for example, the manager does not agree to accept the application or does not want to sign for its receipt), then you should resort to postal services. The application is sent to the manager by registered mail with an inventory and notification. Otherwise, it will be impossible to subsequently prove the legality of the employee’s failure to fulfill his duties.

It should be taken into account that not all employees have the right to suspend the performance of duties in the event of delayed wages. Article 142 of the Labor Code of the Russian Federation categorically prohibits this for the following categories:

civil servants;
employed citizens, on whose work the normal functioning of people directly depends (ambulance and intensive care workers, specialists from heat, electricity, and water supply organizations);
employees of enterprises whose activities are associated with hazardous production.

As practice shows, issues of delayed wages are considered in court for quite a long time. Therefore, it is advisable to suspend work during the trial. But before you do this, you should clarify several important points that may be directly related to the current situation:

Has payroll been processed? In cases where there are no disputes about the amount of wages due and the existence of debt, the case is considered according to a simplified scenario and the employee can almost immediately receive a writ of execution.
Isn’t the incomplete payment of wages a consequence of the lawful withholding of part of it (for example, according to writs of execution, due to an overpaid advance for travel expenses, the return of excessively transferred amounts as a result of errors in calculations, upon dismissal due to payment for actually unworked days). No more than ½ of the total income is allowed to be withheld.

In this case, the employee is not obliged to return the excess salary.

What to do if salary was not paid upon dismissal

Article 140 of the Labor Code of the Russian Federation obliges the employer to make final payments to the employee directly on the day of his dismissal. This means wages for the previous month (together with arrears, if any), the 13th salary (if provided for by the company’s internal regulations), compensation for each day of unused vacation.

If an employee quits due to a reduction in the company's staff or its liquidation, then he has the right to severance pay equal to the amount of the average monthly salary. In addition, he is entitled to maintenance for the time necessary for the subsequent search for work and employment - equal to the average monthly salary, paid 2 months after the day of dismissal. If within 2 weeks an employee is registered with the Employment Center, but within 2 months has not found a job, then he will receive the corresponding benefit for 3 months.

In cases where, upon dismissal, the employer does not comply with its obligations to pay wages, the employee must act in the same way as in case of delay (non-payment) of wages. But you should start not with visiting the relevant authorities, but with a written demand for payment of the amounts due in the name of the manager. Otherwise, an unscrupulous employer may claim that the employee himself did not deign to come to receive the final payment. And then the latter risks losing part of his honestly earned money.

From this article you will learn:

There are no valid reasons for delaying wages.

In the current economic situation, many companies are experiencing financial difficulties. They solve them in different ways: some turn a blind eye to the timing of transfers to employees, in some places wages are not paid in full. In extreme cases, they don’t pay at all.
But we must understand that no economic difficulties or financial problems are an excuse for the inspection authorities and the court. Since negative consequences are envisaged for violators, rest assured: you will have to answer.

Delay of wages under the Labor Code 2017

Paydays

According to the new edition of Part 6 of Art. 136 of the Labor Code of the Russian Federation, the date of payment of wages must be no later than 15 calendar days from the end of the period for which it was accrued.

The requirement that wages are paid at least every half month (Part 6 of Article 136 of the Labor Code of the Russian Federation) has not changed.

The new edition clarifies:

1. Documents in which you must determine the days of salary payment.

The specific date is established by “internal labor regulations, a collective agreement or an employment contract.” That is, now it is enough to fix this condition in at least one of the named documents.

Check if this rule is followed in your company. If not, indicate the dates of payment of wages in the PVTR, collective or employment agreements.

2. The deadline on which you must pay wages for the previous period.

This date must be “no later than 15 calendar days from the end of the period for which it was accrued.”

An example of salary payment according to the new rules

Employees must receive wages for the second half of September 2016 no later than October 15, 2016.

If your documents set different deadlines, do not delay the adjustment. The new rules come into force on October 3, 2016.

Consequences of delayed salary payments

Bringing the employer to administrative liability
Holding the employer financially liable.
Bringing the manager to administrative and criminal liability.
Suspension of work by employees if payment is delayed by more than 15 days.
Initiation by employees of the employer's bankruptcy if payment is delayed for more than three months.
Compensation for moral damage to the employee.

Compensation for delayed payment of wages

If the deadline for payment of any amounts due to the employee is violated, the employer must pay them with interest (monetary compensation).

Conditions for calculating compensation for delayed payment of wages:

Condition 1. Payment of compensation for late wages is an obligation, not a right of the employer.

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

Condition 2. The employer is obliged to pay compensation for delayed payment of wages, regardless of the presence of guilt (Article 236 of the Labor Code of the Russian Federation).

Don't lose sight

You are required to pay compensation for late payments even in cases where payments are not made on time at the request of the employee, due to the fault of the bank, or in other situations.

Example of payment of compensation 1

Employees often ask for vacation not according to schedule, but “right tomorrow.” Employers who comply with such requests violate the deadline for paying vacation pay, not having the physical ability to issue them three days before the start of the vacation. And still, even in this situation, vacation pay must be accrued taking into account compensation.

Compensation payment example 2

The employer transferred funds to pay salaries to the bank on time, but they were credited to the employees' cards late - due to the fault of the bank. Despite the employer’s innocence in this violation, he must pay compensation for all days of late payment.

Condition 3. The amount of compensation must not be lower than the amount provided by law.

How is compensation for delayed wages calculated? The minimum amount of compensation is 1/300 of the CBR refinancing rate in effect during the period of delay in relation to amounts not paid on time for each day of delay, starting from the next day after the stipulated payment period and ending with the date of actual settlement (inclusive) (Article 236 of the Labor Code of the Russian Federation).

From October 3, 2016, the amount of monetary compensation for delayed payment of wages will increase. It will be 1/150 of the key rate of the Central Bank (Federal Law dated July 3, 2016 No. 272-FZ). This is the minimum that can be increased by local regulations, collective or labor agreements.

Don't lose sight

For relationships in which the refinancing rate of the Bank of Russia is used, from January 1, 2016, the key rate of the Bank of Russia is applied instead (Resolution of the Government of the Russian Federation dated December 8, 2015 No. 1340 “On the application of the key rate of the Bank of Russia from January 1, 2016”). From June 14, 2016, the key rate is 10.5% per annum.

Condition 4. Monetary compensation for delayed wages under the labor code must be paid simultaneously with the repayment of the debt.

An employee may go to court with a demand to hold the employer financially liable in terms of payment of interest for delayed wages (see, for example, the ruling of the St. Petersburg City Court dated February 4, 2009 No. 1318). Its non-payment, as well as non-payment of the main salary debt, is a violation of labor legislation, for which the employer may be held administratively liable.

Calculation of compensation for delayed wages

From October 3, 2016, you are obliged to pay amounts due to the employee, with interest paid in an amount not less than 1/150 of the key rate of the Central Bank of the Russian Federation on amounts not paid on time for each day of delay. If part of the salary is not paid, compensation is calculated from the amounts actually not paid on time (Article 236 of the Labor Code of the Russian Federation as amended).

Interest on delayed wages

Interest for late wages will need to be accrued on the amount of actual payment after deducting personal income tax.

Compensation for delayed wages: taxation

Amounts of accrued interest:

are not taken into account as part of the expenses taken into account when taxing profits, since they are not related to the working hours or working conditions, as well as the maintenance of employees (clause 1, article 252, clause 49, article 270 of the Tax Code of the Russian Federation, letter from the Ministry of Finance of Russia dated 10.31.2011 No. 03-03-06/2/164);
are exempt from personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated November 28, 2008 No. 03-04-05-01/450);
are exempt from insurance premiums.

True, taxpayers will most likely have to defend this point of view in court.

Compensation for delayed wages: insurance premiums

Is compensation for delayed wages subject to insurance premiums?

The Ministry of Labor of Russia and the Ministry of Finance of Russia, pointing out that compensation for delayed payment of wages is made within the framework of labor relations, believes that insurance premiums should be charged on it (letter of the Ministry of Labor of Russia dated 06.08.2014 No. 17-4/B-369, Ministry of Health and Social Development Russia dated March 15, 2011 No. 784-19, Ministry of Finance of Russia dated March 15, 2011 No. 03-03-06/1/138).

However, this point of view does not find support in judicial practice. And while defending your position, you can take into account court decisions.

The Orenburg regional branch of the FSS of Russia conducted an on-site inspection of the correctness of calculation, completeness and timeliness of payment (transfer) of insurance contributions to LLC for compulsory social insurance in case of temporary disability and in connection with maternity in the FSS of Russia. Based on the results of the inspection, a decision was made to hold the LLC liable for violating the legislation of the Russian Federation on insurance premiums.

The Fund concluded that the taxable base for calculating insurance premiums was understated as a result of the failure to include monetary compensation paid in accordance with Art. 236 of the Labor Code of the Russian Federation for violation by the employer of the established deadline for payment of wages.

Disagreeing with the Fund’s decision, the LLC appealed to the Arbitration Court of the Orenburg Region with a request to declare it invalid.

Considering the complaint, the court stated the following.

The object of taxation of insurance premiums for payers of insurance premiums is payments and other remuneration accrued in favor of individuals within the framework of labor relations (Part 1, Article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On Insurance Contributions to the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund" (hereinafter referred to as Law No. 212-FZ) as amended in force during the disputed period). Payments and other remunerations accrued in favor of individuals subject to compulsory social insurance in accordance with federal laws on specific types of compulsory social insurance are also recognized as the object of taxation with insurance contributions.

The base for calculating insurance premiums is determined as the amount of payments and other remunerations provided for. 1 tbsp. 7, accrued by payers of insurance premiums for the billing period in favor of individuals, with the exception of the amounts specified in Art. 9 (Part 1, Article 8 of Law No. 212-FZ).

The list of amounts not subject to insurance premiums for payers of insurance premiums includes all types of compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation) related to the performance of physical the person has labor duties (subclause “and” clause 2, part 1, article 9 of Law No. 212-FZ).

Since Law No. 212-FZ does not contain a definition of compensation payments related to the performance of labor duties, this term is used in the sense that labor legislation gives it.

Provided by Art. 129 of the Labor Code of the Russian Federation, compensation payments - additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, in special climatic conditions and in territories exposed to radioactive contamination, and other payments of a compensatory nature are elements of wages (wages ) and are included in the base for calculating insurance premiums.

Compensation specified in Art. 164 of the Labor Code of the Russian Federation as monetary payments established for the purpose of reimbursing employees for costs associated with the performance of their labor or other duties provided for by the Code and other federal laws are not subject to insurance premiums.

Article 236 of the Labor Code of the Russian Federation establishes the financial liability of the employer for the delay in payment of wages and other payments due to the employee. This monetary compensation is a type of financial liability of the employer to the employee; it is paid by force of law to an individual in connection with the performance of his labor duties, providing additional protection of labor rights.

The mere fact of the existence of an employment relationship between an employer and an employee does not constitute a basis for the conclusion that all payments made to the latter constitute payment for his work.

Consequently, amounts of monetary compensation for delayed payment of wages are subject to subclause. “and” clause 2, part 1, art. 9 of Law No. 212-FZ and are not subject to inclusion in the base for calculating insurance premiums.

Thus, the Fund had no grounds for charging insurance premiums for the amounts of these payments (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 10, 2013 No. 11031/13 in case No. A47-339/2013).

Employee rights in case of delayed wages

If wages are delayed for more than 15 days, the employee has the right to suspend work for the entire period until it is paid. To do this, they only need to notify the employer in writing that from a certain day they will suspend the performance of their work duties for the specified reason (Part 2 of Article 142 of the Labor Code of the Russian Federation, letter of the Ministry of Labor of Russia dated December 25, 2013 No. 14-2-337).

The right to suspend work does not depend on whether the employer is to blame for non-payment of wages (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.

An example of an employee’s application for suspension of work

Such actions of the employee are self-defense of the violated right to timely payment. The negative consequences for the employer are as follows.

Consequence 1. The employee’s absence from the workplace and his failure to fulfill his job duties. When work is suspended due to non-payment of wages, such absence is not a violation of labor discipline and cannot become a basis for prosecution. You cannot reprimand or reprimand an employee, nor fire him for absenteeism.

P. appealed to the court with a demand to oblige the defendant (NP) to change the wording of the grounds for her dismissal from sub. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (for absenteeism) on clause 3, part 1, art. 77 of the Labor Code of the Russian Federation (at one’s own request), the date of dismissal is as of the date of the decision, to recover from the defendant arrears of wages, compensation for unused vacation, earnings for the period of forced absence, compensation in accordance with Art. 236 of the Labor Code of the Russian Federation, compensation for moral damage.

P. was fired for absenteeism on July 1-3, 2014. However, according to her, on these days she was rightfully absent from the workplace due to the suspension of work in accordance with Art. 142 of the Labor Code of the Russian Federation due to non-payment of wages. The employer had no grounds for dismissing her for absenteeism. In addition, upon dismissal, the final payment was not made to her, and the salary arrears were not repaid.

On June 30, 2014, P. notified the employer in writing of the suspension of work due to the delay in payment of wages for the period from April 1 to June 29, 2014. P. did not go to work until the debt was repaid on July 15, 2014.

After the defendant paid off the salary arrears, P. went to work. On July 22, 2014, the defendant requested written explanations from P. about the reasons for his absence from work in the period from July 1 to July 3, 2014. In the explanations, P. indicated that she was absent from work due to a delay in payment of wages, which she notified the employer in writing.

The court found no grounds for dismissing P. for absenteeism, since she was lawfully absent from the workplace.

The defendant’s arguments that the general director was not personally notified of the plaintiff’s suspension of work were recognized by the court as unfounded (appeal ruling of the Moscow City Court dated April 14, 2015 No. 33-12208/2015).

Consequence 2. The employer must pay for the period of suspension of work, despite the fact that the employee did not perform his duties during this time.

For this period, the employee retains his average earnings (Part 4 of Article 142 of the Labor Code of the Russian Federation). This requirement was introduced into the Labor Code of the Russian Federation by Federal Law No. 434-FZ of December 30, 2015 “On Amendments to Article 142 of the Labor Code of the Russian Federation” and has been applied since January 10, 2016.

Consequence 3. The employer may be held liable for material, administrative and criminal liability - even if employees successfully implement self-defense measures.

Controversial situations when work is suspended due to delayed wages

In practice, during the period of suspension of work, situations arise that are not directly provided for by law.

Situation 1. The employee did not begin to perform his duties on the next working day after receiving a written notification from the employer of his readiness to pay the delayed amount on the day he returned to work.

An example of a notification of readiness to pay wage arrears (fragment)

Absenteeism from work in this situation may be regarded as absenteeism. However, before bringing an employee to disciplinary liability, including dismissal, do not forget to find out all the circumstances and make sure that there are no valid reasons for absence (see, for example, the Appeal ruling of the Volgograd Regional Court dated 03/07/2014 in case No. 33-2632/2014).

Situation 2. The employer is able to repay the wage arrears only partially, and notifies the employee of this. Is he obliged to go to work and can the employer fire him for absenteeism in case of no-show?

We believe that partial repayment of salary debt is not grounds for mandatory resumption of work. The courts also consider dismissal in this situation to be unlawful, believing that the suspension of work can continue until the debt is fully repaid (see rulings of the Moscow City Court dated January 24, 2014 No. 4g/3-50/14 and 4g/3-51/14).

Situation 3. The employee did not return after vacation because he was not paid vacation pay.

In this case, the employee’s actions are unlawful, since self-defense is possible only in case of delay in payment of wages. For cases of non-payment of vacation pay on time, another option for asserting rights is provided: the employee can ask to postpone the vacation to another time convenient for him (Part 2 of Article 124, Part 9 of Article 136 of the Labor Code of the Russian Federation). Absenteeism from work in this situation may be regarded as absenteeism.

When suspension of work is prohibited

Suspension of work is prohibited:

during periods of martial law, a state of emergency or special measures in accordance with the legislation on a state of emergency;
in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the country's defense and state security, emergency rescue, search and rescue, fire-fighting work, work to prevent or eliminate natural disasters and emergency situations, in law enforcement agencies;
in organizations directly servicing particularly hazardous types of production and equipment.

Also, civil servants and employees whose duties include performing work directly related to ensuring the livelihoods of the population (energy supply, heating and heat supply, water and gas supply, communications, ambulance and emergency medical care stations) cannot suspend work.

Employee rights in case of delay in wages for more than three months

Today, employees, including former employees, who have not received wages or severance pay for more than three months, have the right to apply to an arbitration court to declare the employer bankrupt. They have this right since September 29, 2015 (clause 2 of article 3, clause 1 of article 6 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” as amended, hereinafter referred to as Law No. 127-FZ). The court will initiate a case if the debt to pay wages or benefits is at least 300 thousand rubles. (clause 2 of article 6 of Law No. 127-FZ).

If the employer does not have enough funds to pay off wage arrears for more than three months, the manager must submit an application to the arbitration court within a month (Article 9, 37 of Law No. 127-FZ).

Administrative liability of the employer for delayed wages

The employer's liability for violation of labor laws is prescribed in Art. 5.27 of the Code of the Russian Federation on Administrative Offences. Under the same article, the employer may be held administratively liable for delays in payment of wages. By the way, from October 3, 2016, the amount of administrative liability will increase.

It must be borne in mind that both the employing organization and its official guilty of late payment of wages (usually the head of the organization) can be held administratively liable.

Criminal liability for non-payment of wages

The legislation also provides for criminal liability of the employer for non-payment of wages, pensions, scholarships, benefits and other payments.

An important circumstance: criminal liability for non-payment of wages is possible only if the employer 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).

As for the definition of grave consequences, the court will evaluate them in each specific case when qualifying the crime. The Criminal Code of the Russian Federation does not contain a list of grave consequences arising from non-payment of wages.

Disciplinary liability of the employer for non-payment of wages

Bringing an employer to disciplinary liability for non-payment of wages is possible both at the initiative of the relevant management body of the legal entity (for example, a general meeting of participants) and at the request of the representative body of employees in the manner prescribed by Art. 195 Labor Code of the Russian Federation.

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 disciplinary action to the head of the organization, its structural unit, and their deputies, 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. There is a known case where the average salary for the period of forced absence, compensation for moral damage, compensation for violation of deadlines for payment of wages and unused vacation, legal costs and state duty, which the company paid to the dismissed employee based on a court decision, were recovered from the head of the company (resolution of the Federal Antimonopoly Service of the North-West district dated June 11, 2014 in case No. A56-48229/2013).

History of the issue of compensation for employees during work suspension

Previously, the issue of compensation for employees during the suspension of work and the amount of this compensation was debatable. Some experts believed that wages should be accrued for this period; others were inclined to use the rules for paying for downtime due to the fault of the employer.

The Supreme Court of the Russian Federation decided that the employee has the right to maintain his average earnings for the entire period of suspension of work. The Supreme Court of the Russian Federation has repeatedly emphasized that the right to refuse to perform a labor function is a forced measure provided for by law in order to encourage the employer to pay the salary specified in the employment contract within the established time frame. This right requires the employer to eliminate the violation and pay the delayed amount. Accordingly, according to the Supreme Court of the Russian Federation, during this period the employee has the right not to go to work and during this time he must maintain his average earnings (Determination of the Supreme Court of the Russian Federation dated September 3, 2010 No. 19-B10-10).

This position was shared by the Russian Ministry of Labor (letter dated December 25, 2013 No. 14-2-337).

Today, compensation in the amount of average earnings for the entire period of suspension of work is directly enshrined in the Labor Code of the Russian Federation.

Situations often arise when employees receive their salaries incompletely or completely late. There can be many reasons for this, so you should know your labor rights and how to defend them. Employers who do not pay wages on time can be punished by law, and the liability can even be criminal.

The legislative framework

The Labor Code regulates that wages should be paid to employees at least once every six months. The numbers of her payments are indicated in the employment contract.

Even one day of delay is grounds to hold the employer accountable.

The material type of liability is considered in Article 236 of the Labor Code. Administrative penalties are regulated by Article 5.27 of the Code of Administrative Offenses of the Russian Federation, and criminal penalties are regulated by Article 145.1 of the Criminal Code.

Employer's liability for non-payment of wages

By delaying employee earnings, the employer must be prepared to face liability for such violations. It can be of different types, and each of them should be considered separately.