Can an employer pay a bonus? Can an employer not pay a monthly bonus? 100 r

The award is mentioned in article 129 of the Labor Code of the Russian Federation. It is established by law as an incentive payment. It can be part of the wages of the staff of the enterprise (organization). The law imposes on the employer the obligation to develop a wage system at the enterprise, as well as the rules for its application in coordination of this process with representatives of the labor collective. As for enterprises of state or municipal ownership, the employer is guided by the recommendations that are developed by a special commission every year in accordance with 161-FZ of 2002. Based on the results of the development of recommendations, a protocol is drawn up.

The procedure for calculating and paying bonuses

Each employer must have an internal document that contains a description of the wages applied. The document may contain the rules for calculating the components of the wages of employees of the enterprise. Development and drafting, implementation of an internal document in the work of the enterprise can significantly simplify the text of the employment contract. In the employment contract, you can not list the algorithm for calculating wages for employees: the document may contain a link to the internal act of the enterprise. Premiums at the enterprise can be annual, quarterly or one-time. The first two types of awards are regular.

The procedure for paying a one-time bonus

A one-time bonus is a monetary reward given to an employee in order to stimulate further labor activity. This action of the employer remains outside the scope of remuneration, which is of a regular nature. A one-time bonus cannot be considered a standard wage. It differs from other types of bonuses, such as quarterly remuneration, in that the one-time payment does not have a regular basis. The motive for obtaining it can be any event in the company, the achievement by a particular employee of high results in work.

A one-time bonus can be included by the employer in the system for calculating a person's wages, as well as vacation pay. A one-time remuneration is regulated by internal acts adopted at the enterprise, a collective agreement and is calculated in the structure of the employee's salary. But it does not apply to mandatory payments, since it is established for a specific person, or a group of people who have achieved high results in their work.

A one-time allowance is based on documents that regulate labor relations in a particular company. Such documents include:

collective agreement;
contract of employment;
regulation governing wages in the company;
other internal acts.

The company can independently develop a document that contains the rules for bonuses to employees. The main condition is the absence of a contradiction between the internal act of the collective agreement, the laws of the Russian Federation. Thus, in the internal document of the company or the existing regulation on bonuses, the following issues are being worked out:

conditions for issuing the award;
the size of the premium;
calculation procedure;
issuance procedure;
circle of persons subject to bonuses;
reward sources.

The one-time bonus must be clearly calculated. It is the income of the employee, therefore, is taxed. The issuance of monetary compensation is reflected in the accounting documentation. The employer can assign a one-time incentive in the form of a fixed amount or an amount that is calculated as a % of the salary received by an individual employee. A fixed amount of a one-time bonus can be determined on the basis of one of the internal acts adopted at the enterprise (in the organization).

Simple rules apply to the calculation of the one-time bonus. If the premium is fixed, then the employee's monthly salary is added to it. For example, the bonus is 5000, the salary is 15000. The total is 20000. We multiply this amount by the bonus factor. It is different, it all depends on the specific region where the recipient lives.

If the bonus is set as a percentage of the employee's salary, then it is necessary to understand how much the percentage of the salary assigned by the employer's order will be. The percentage is added to the employee's monthly salary.

The decision on a one-time payment is made by the employer. But the amount and algorithm for its issuance is regulated by law. In particular, art. 144 of the Labor Code of the Russian Federation.

So, the head of the department where the bonus person works determines the criteria by which the payment process takes place. For example, the head of the department can write a memo that justifies the need for payments, or creates another document equivalent to the law. The amount of the bonus to be issued is agreed with the head of the financial department. Data for the purpose of making a final decision is transferred to the highest official of the enterprise. He must sign a document, which is then transferred to the accounting department of the organization, where the remuneration is issued.

An order for the issuance of a one-time bonus cannot be drawn up arbitrarily. It must be of the form T-11 or T-11a. The form was developed by the State Statistics Committee in 2004. The following items should be reflected in the order for the award:

name, surname of the employee;
personnel number of the employee;
employee's position;
the name of the department where he works;
reward amount;
type of award;
the amount of the award.

Terms of payment of the annual bonus

The annual bonus can be paid on the basis of an employment contract, a collective agreement, an internal document, for example, a regulation on wages. Payments are made by order of the head of the organization. The order has the form T-11 and T-11a.

The terms for the payment of the annual bonus are determined by law, in particular, in Article 136 of the Labor Code of the Russian Federation. The annual bonus must be paid to the staff of the enterprise (designated employees) within 15 days from the date of its accrual. Employers in these 15 days can set any date for the issuance of bonuses. For example, these could be days:

the last working (calendar) day of the outgoing year simultaneously with the issuance of wages;
the day after the founder of the organization accepts internal reporting;
day after the submission of the annual report.

If the employer has violated the deadlines for paying the annual bonus, penalties are imposed on him.

Terms of payment of monthly bonuses

Monthly bonuses, based on the meaning, are paid based on the results of the month worked by the employee. The employer analyzes the productivity of the departments, then decides whether it is necessary to reward their employees. Payment of such bonuses is made no later than the 15th day of the month following the month worked. The scheme is not easy for employers with a large staff of employees, that is, heads of large enterprises. It is difficult to determine the performance of each of the departments working in a large enterprise in 15 days. Therefore, there is often a delay in premiums for 1-2 months. But this is no longer in line with the law; for violations, the employer bears administrative responsibility.

Employers sometimes do not have time to analyze the labor results of employees of the enterprise. Consequently, the accrual and payment of bonuses are delayed. Often, because of this, employers resort to schemes for transferring bonuses to other periods, which should be reflected in local regulations. Such actions of the employer will not be legal, since the Labor Inspectorate is not loyal to this process if such a scheme is calculated. In addition, these schemes are an additional burden on the accounting department.

Quarterly bonus payments

Quarterly bonuses under Article 136 of the Labor Code of the Russian Federation are paid no later than the 15th day of the month following the month worked.

Terms of payment of bonus upon dismissal

The remuneration system adopted at enterprises or organizations forms wages, making up this payment from several parts. One of these parts is the award. This is an incentive payment. The majority of bonuses, excluding one-time remuneration, relate to regular payments. The rules for calculating the bonus should be reflected in the internal act of the employer, the collective agreement, the Regulations on remuneration, Regulations and incentives, etc. If an employee is deprived of the right to receive a bonus, this must be reflected in the internal document of the employer.

The premium is accrued after the end of the period with which it is associated. In relation to an employee dismissed from the place of employment, the payment of the bonus occurs after the dismissal. If the bonus is part of the salary, the dismissal cannot deprive him of the right to receive remuneration. The bonus can be accrued after dismissal, but for the period when he worked in a particular enterprise (organization). This provision follows from the Letter of the Ministry of Finance of 2005, under the number 1/294. Article 140 of the Labor Code of the Russian Federation says that a full settlement with the employee must be made on the day of his dismissal, the bonus must be paid after the dismissal. This is not a violation of the law.

The conditions for calculating the bonus after the dismissal of a person are:

the work of a person during the period for which remuneration is accrued;
fulfillment by the former employee of all performance indicators, the validity of his remuneration;
the absence in the internal regulatory act of the reasons that prompted the employer not to reward the dismissed person.

If the employer refuses to pay bonuses after dismissal, this is illegal. The employee must understand this and immediately contact the boss. If the employer does not meet halfway, that is, does not fulfill its legal obligations in relation to the former employee, the latter has the right to seek protection in court.

Having defended his rights in this body, he will receive the remuneration due to him. The employer will need to pay additional legal costs, and possibly moral damage to the former employee, if he indicates it in the lawsuit.

If a person quits his job of his own free will, then the procedure for paying bonuses is simple:

The employee draws up a letter of resignation in writing. In it, he indicates the terms of dismissal.
This document is signed by the head.
The application is registered.
A letter of resignation is printed.
The order is registered.
The employee gets acquainted with the order.
Wages are accrued, as well as compensation to the employee associated with unused vacation, if it is due in this case.
The employee is issued a work book.
A person signs that he received a work book.
The employee is given a pay slip.

Based on the fact that the employee subject to bonuses is dismissed, the calculation of payments takes place depending on the type of incentive. For example, promotion can be regular, annual, one-time. In addition, depending on the period worked, which refers to the time of the performance of his labor duties. If a person is fired due to non-fulfillment of labor duties, then the employer can legally deprive him of bonuses.

Bonuses to employees dismissed of their own free will must be paid. Refusal by the employer in this action cannot be considered legal. Therefore, it can be appealed to the Labor Inspectorate and in court. However, the employer may not pay bonuses to the dismissed employee for the period of his work in the organization or at the enterprise. But this happens only if the employee conscientiously performed his duties, which means that there are simply no grounds for refusing to pay bonuses.

An employer for conscientious work can declare gratitude, award a certificate of honor, a valuable gift, and award the title "Best in the profession."

Material remuneration is also generally accepted - a quarterly bonus, when a monetary equivalent is paid for the fulfillment of planned indicators, ahead of schedule and other successes and achievements based on the results of three months of work.

Quarterly premium

Article 129 of the Labor Code of the Russian Federation contains a definition of the concept of wages. As follows from the wording, an employee's salary includes a stimulating, incentive payment, for example, a bonus.

The issuance of a bonus as an incentive for hard work is regulated by article 191 of the Labor Code of the Russian Federation. In it, the legislator specifies who receives the incentive, for what and in what terms. The type of incentive and its amount are established by the collective agreement or the internal rules of the enterprise (find out what regulates and how the collective agreement is concluded).

The legislator does not offer more detailed and detailed concepts of the term "quarterly premium". It should be considered as a quarterly bonus material incentives for employees for successful work, received every three months.

The current legislation does not regulate the actions of the employer in the matter of payment, establishing the amount, and the procedure for calculating the quarterly bonus. This issue is entirely the responsibility of the head of the enterprise.

Duty to pay quarterly bonus

The company has no such obligation. The decision to pay a quarterly bonus is made by the employer based on financial capabilities in the reporting period.

If the work of the departments is efficient and break-even, incentives can be paid out of the profits of the enterprise. The manager has the right to deprive remuneration based on the results of work of dishonest employees who are noticed in violations of the labor schedule, caught in the dishonest performance of their duties, etc.

Note: under the Labor Code of the Russian Federation, incentive payments are not at all accrued to employees who received any disciplinary sanctions in the reporting quarter, as well as women who were on parental leave throughout the quarter.

In this case, the employer is guided by local acts and regulations on bonuses adopted at the enterprise. Conflict situations related to the deprivation of the award are resolved in or in court.

When and how is the premium paid?

The name "quarterly bonus" indicates the frequency of payment of remuneration: once every three months, not more often. By law, the bonus is equated to such a payment as a salary (Article 129 of the Labor Code of the Russian Federation) and also depends on the quality of work. The bonus is a regular payment provided for each member of the labor collective. If all the conditions of accrual are met, any employee has the right to it.

According to Article 135 of the Labor Code of the Russian Federation, the employer includes bonuses in the wage system. For this, an internal regulatory act is being developed, which sets out a list of types of payment and their application on the basis of and in accordance with an employment contract, an incentive system.

Illegal bonus deduction

If the employment contract clearly states that, regardless of the circumstances, the employer is obliged to pay employees a quarterly bonus, then it will be considered illegal, and employees will have the right to go to court.

Incentive rules can be formulated both in the employment contract and in the provision on bonuses. It describes all types of bonuses used at the enterprise, with what frequency they are paid, who is entitled to receive, under what conditions, the criteria for evaluating the performance of an employee, on which the size of the quarterly bonus depends, the methodology for reviewing the performance of each employee.

It also regulates the procedure for de-bonding and challenging the actions of the employer.

There can be several types of quarterly bonus, for different categories of employees, with different accrual conditions, payment criteria and reasons for depriving the bonus.

Each enterprise has developed its own system of payment and incentives for employees based on the results of the quarter.

The employer has the right to calculate the bonus according to his own methods. There may be several calculation options. Most common:

in a predetermined amount - a fixed premium;
as a percentage of wages (salary).

Options for paying bonuses to employees, as well as common mistakes employers make when making bonuses, are discussed in the video

Fixed premium calculation

Depending on the conditions specified in the bonus regulation or other local act of the enterprise, the fixed premium is calculated differently:

Accrual is made in full, without taking into account the actual hours worked for the final period (quarter).
Accrual is made in proportion to the time worked for the reporting period.
Accrual is not made if the month is not fully worked out.

In the first case, the set amount is simply paid without any adjustments.

The second option means that you need to calculate the quarterly bonus for the time actually worked, that is, determine what part of the working time in the quarter the employee actually worked. In proportion to the share of the actual time worked, appoint a bonus payment.

In the third case, the amount of the premium is calculated by a simple calculation:

PV \u003d (P: 3) x 1 (x2)

where PV is the bonus payment if the employee has worked only 1 or 2 full months,
P - a fixed amount of the premium for the quarter.

Calculation of bonus as a percentage of salary

If the employer considers it necessary, the amount of bonuses is correlated with the actual time worked, the number of days worked per month.

If the amount of the bonus depends on the amount of hours worked, the proportion of hours worked is calculated and, accordingly, the size of the incentive is calculated.

If the amount of the bonus is linked to the number of full months worked per quarter, the calculation is done as indicated above.

It is worth noting: The bonus is the same wage as wages. Therefore, when calculating the average daily earnings for temporary disability benefits, vacation pay and other accruals, bonuses should also be included in the calculation. Read more about whether bonuses are taken into account when calculating vacation pay.

Award 1010 military personnel in 2019

Encouragement of military personnel and civil servants is carried out according to the Order of the Ministry of Defense of the Russian Federation No. 1010 dated July 26, 2010. The payment is the so-called "thirteenth" salary. It is given to military personnel once a year. Civil servants - every quarter.

Premium 1010 for the 4th quarter of 2019 is paid to military personnel in December, accrual is made in advance. The amount of the promotion depends on the estimated amount for the year, rank and military position. The amount of encouragement for military personnel and civilian personnel (with the exception of some categories of commanders) is taken no more than five times the calculated amount. The specific amount depends on the number of personnel and the amount of funds. Bonuses for those with disciplinary action are not made.

See in this video what features of the 1010 award you should pay attention to

Awards for civil servants

They are established in accordance with Federal Law No. 79 “On the State Civil Service of the Russian Federation”.

Civil servants are entitled to two types of incentives: bonuses based on performance and monthly cash incentives.

Monthly cash incentives for civil servants are paid regularly, differentiated, in accordance with the Decree of the President of the Russian Federation (part 6 of article 50 of the Federal Law No. 79). In the regions - in accordance with the regulations of the constituent entity of the Russian Federation. Bonuses are paid for the performance of particularly important and complex tasks. The decision on remuneration is made by the employer on an individual basis.

Successful and impeccable performance of the state civil service is the basis for:

gratitude announcements with the payment of a one-time incentive;
awarding an honorary diploma;
other types of incentives.

There are no quarterly bonuses for civil servants.

How are bonus taxes paid?

Premium taxes are paid in the prescribed manner. The quarterly bonus, no matter for what reasons the employer pays it, is subject to personal income tax and insurance premiums, like a regular salary.

We are ready to answer your questions - ask them in the comments

The dismissal of an employee, in accordance with the Labor Code of the Russian Federation (Article 140), is accompanied by a full settlement with him. All amounts due must be paid on the day of dismissal. However, there are always many questions regarding bonus payments. At the time of dismissal, the amount of the bonus may not yet be determined. How to calculate the leave in this case? Is it necessary to pay a bonus to an employee who is no longer going to work in the organization? The award is an incentive payment. Does it make sense to use it in this case? How to avoid violation of the law and sanctions of regulatory authorities?

General issues of bonuses for departing employees

Forms of remuneration in the organization, the system of this payment (SOT) may include not only payments for the actual performance of their duties by employees, but also be of an incentive, bonus character. The payment of bonuses is regulated by all-Russian legislation and local regulations relating to labor relations (LNA).

The Labor Code does not consider in detail the issues of bonuses, indicating only that in the event of a dispute, the employer must pay the employee an amount not disputed by him. In order to avoid problematic moments, bonuses and their payment are described in detail in the regulatory documents of the organization. The procedure for calculating and paying bonuses in the organization is prescribed:

in a collective agreement;
in the employment contract (agreement) with the employee;
in the regulation on wages;
in orders and instructions on individual bonuses for individual employees.

It is advisable to reflect the bonus procedure in the individual agreement of the parties, while at the same time prescribing the detailed conditions for such payments in the collective agreement or the Regulations.

All bonus amounts due to an employee in accordance with regulatory documents must be paid upon dismissal thereof. The amounts of accrued bonuses are included in the amount of dismissal payments (for example, compensation for unused vacation), in accordance with the current government Decree No. 922 of 24-12-07 on average earnings. According to Federal Law No. 272 and subsequent clarifications from the Ministry of Labor (see Letter No. 14-1 / V-800 dated 08/23/16), the payment of bonuses must be completed no later than the 15th day after the period for which it was accrued, and LNA should contain appropriate wording on the timing.

Premium Accounting

Accounting for the bonus to the dismissed employee is kept on the accounts of salary, other calculations and corresponding with them. The premium is accrued on the debit of production and similar accounts: D 20, 23, 25, 26, 44, etc. K 70.76. Payment is made in the usual way, through the cashier or bank: D 70, 76 K 50.51.

Annual and quarterly bonuses are subject to tax (Article 208-1 of the Tax Code of the Russian Federation) and are reflected in the posting: Dt 70, 76 Kt 68 / personal income tax.

On a note! There is Art. 217-7 of the Tax Code of the Russian Federation, which contains a mention of non-taxable awards (for example, for outstanding achievements in science or cultural activities), in addition, bonuses of 4,000 rubles or less specified in Art. 217-28 of the Tax Code of the Russian Federation.

The inclusion of bonus payments that are not registered in the LNA, based on a decrease in the base, is illegal (Article 270-21 of the Tax Code of the Russian Federation). Premiums are subject to insurance accruals, according to Art. 420 of the Tax Code of the Russian Federation, Art. 20.1-1 of the Federal Law No. 125 dated July 24, 1998. The costs for them are fixed as standard: Dt 20, 23, etc. K69 (according to sub-accounts).

The employee quits, and the amount of the bonus has not yet been determined

If the amount of the bonus is known by the time of dismissal, the accounting accountant does not have any problems, he includes it in the calculation of dismissal amounts. If by the time of dismissal the amount of bonuses has not been determined, a recalculation should be made later and the amount due to the former employee should be adjusted. It is obligatory to make an additional payment, fixing its receipt by the employee in any legal way. Otherwise, it is likely that he will go to court. The terms for paying bonuses to employees after their dismissal must be prescribed by the LNA (Article 8 of the Labor Code of the Russian Federation) - the Regulations on labor protection, on bonuses, etc. This position is contained in the Letters of the Ministry of Finance, for example, No. 03-03-04 / 1/294 dated 25-10 -05, recommendations of Razgulin S.V., state adviser of the 3rd class, arbitration jurisprudence.

Errors and consequences

Errors arising in the process of calculating bonuses can be divided into 3 categories:

arithmetic;
arising as a result of incorrect application of the established calculation rules;
related to tax accounting.

The latter have already been mentioned: they arise, for example, if a premium that is not legally fixed is included in the calculation of the income tax base in order to reduce it. Such actions are considered by the IFTS as a reason for the application of fines and sanctions when checking calculations.

Accounting errors lead to incorrect payment of funds to the former employee in the calculation. An underestimated amount of the premium can be recalculated and paid additionally, while an overestimated amount of the paid premium is a problem for the organization, as it can be resolved in court. According to Art. 137 of the Labor Code of the Russian Federation, the overpaid amount from the employee can be withheld, however, the specified citizen is not actually an employee. In addition, the already mentioned Art. 140 of the Labor Code of the Russian Federation speaks of the possibility for an employee to challenge the amounts paid. It is advisable, therefore, pre-trial resolution of this dispute.

Errors of a different nature, in addition to arithmetic, overstating bonus payments to a dismissed employee, are resolved only at the expense of the organization's funds (Civil Code of the Russian Federation, Art. 1109). The court in any case will be on the side of the dismissed citizen.

Is it possible not to pay a bonus upon dismissal

All grounds on which the premium is paid must be spelled out in local acts agreed upon among themselves. In the presence of vague wordings, contradictions, the emergence of a conflict, in the event of a refusal to pay a bonus to a dismissing employee, is inevitable. Thus, the wording: “The manager has the right to pay incentive payments to employees - bonuses” is not binding on payment, and the phrase “The manager must pay bonuses” fixes the obligation of such payments.

Cases of deprivation of bonuses in the LNA should also be clearly spelled out. Every employee should be familiar with the labor regulations adopted in the organization. Consent must necessarily be recorded by his signature.

Non-payment of the bonus prescribed in the LNA to a dismissed employee on the basis of a disciplinary sanction is not recommended. When applying to the court, most likely, such a decision of the organization's management will be recognized as illegal.

On a note! The deadline for applying to the court is 3 months from the moment when the employee became aware of the violation of his rights, i.e. from the date of receipt of the settlement amounts from the organization.

Main

The bonus to the dismissed employee should be paid in the vast majority of cases. Non-payment of bonuses must be recorded in the organization's local acts relating to labor relations, otherwise litigation with a former employee is likely, not in favor of the organization.
Errors made in the direction of overstating payments to the dismissed person can be corrected at the expense of the former employee, only if they are arithmetic in nature, in a judicial proceeding.
Quarterly and annual premiums are subject to personal income tax, insurance premiums and are included in the income tax calculation only if they are registered in the LNA.
Postings reflecting bonus payments are made by analogy with taking into account wages.

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Is it possible to recover a bonus that the employer pays regularly if you convince the court that this payment is mandatory? This was attempted by an employee of a large bank who filed a claim for 100,000 rubles. The appeal sided with him, but the Supreme Court corrected it. The experts analyzed the bank's mistakes and gave advice in such matters to both companies and their employees.

Bonuses are built into the pay system of many employers. But it often happens that the salary in the company is small, and most of the pay is bonuses. If the relationship between the employee and the employer deteriorates and the employee loses this payment, will he be able to recover it in court, proving that it is mandatory? The outcome of the consideration of the case always depends on the wording in the local regulations of the employer, so the courts have to deal with "lettering" when making a decision, says partner Anna Ustyushenko. It can be difficult for courts to deal with local acts of companies, because only one article is devoted to bonuses in the Labor Code, adds Anna Ivanova, head of the labor law practice at AB.

One such case reached the Supreme Court, in which Anatoly Lipovets*, Chief Specialist of the Department of Analytical Systems of the Department of Banking Technologies of CB Yugra*, exacted a premium of 109,308 rubles. for January and February 2016 - the last two months of his work at this place. Lipovets's salary was 82,800 rubles, he was entitled to a monthly bonus, provided for by a local regulatory act - the regulation on wages. The bonus was calculated on the basis of 66.7% of the salary, multiplied by the coefficient of performance of the general bank indicator.

66.7% of salary -

this is the basis for the bonus to the employees of the bank "Ugra" (multiplied by the general bank coefficient, which can be, for example, from 50% to 100%).

The bank has not paid this bonus to Lipovets for the last two months, because the rate was 0%, and none of the employees received the bonus. This payment is optional and is transferred only if financially possible, so the claim should be denied, the employer insisted. The former employee, in turn, insisted that the multiplication factor cannot be less than 50%. In support of his words, Lipovets referred to the regulation on the remuneration of "Ugra", which states that this figure "may be equal to 50%, 70%, 90% and 100%."

The courts were divided on whether the bank should pay the premium. The Megion City Court of Khanty-Mansi Autonomous Okrug-Yugra refused Lipovets. The bonus according to the Labor Code is an optional incentive bonus, indicated in decision No. 2-1236. The court studied the history of such payments to Lipovets, and it turned out that in some months the plaintiff did not receive it, while in others it turned out to be less than usual. The court of Khanty-Mansi Autonomous Okrug-Yugra, on the contrary, agreed with Lipovets that the minimum coefficient of 50% guarantees the employee a monthly bonus. “The employer cannot arbitrarily set the amount of the bonus or not pay it at its own discretion,” states definition 33-9868 / 2016.

On the nature of the premium and the shortcomings of the bank

The decision of the appeal was canceled by the Supreme Court, which noted that the employment contract with Lipovets does not provide for and does not guarantee him any bonus. The regulation on remuneration states that the payment of such allowances depends on the result of the bank's work, they are not included in the list of guaranteed payments. None of these documents says that the monthly bonus is a mandatory part of the salary, it is noted in definition No. 69-KG17-22. Art. 191 of the Labor Code, which makes the payment dependent on various circumstances: how the employee performs his duties, the economic success of the company itself, or other conditions that the employer himself determines in local regulations.

In addition, the cassation filed appeals against guilt and procedural violations. The district court decided that the bank incorrectly calculated the premium coefficient, but did not offer the parties to substantiate one or another of its size, and also refused to attach evidence to the bank that this figure was 0%. The appeal will have to correct these shortcomings in a new trial.

"The jurisprudence on labor compensation has always proceeded from the fact that bonuses and other incentive payments are not mandatory for the employer and therefore are not subject to recovery by the court. In this sense, the definition of the SC was predictable"

If an employment contract or a local normative act (for example, a regulation on remuneration) does not directly establish that the bonus is a mandatory allowance, then its payment is not guaranteed, Olga Polezhaeva, deputy head of the labor law practice at Ankor personnel holding, analyzes the outcome of the case. Ivanova cites an argument in favor of the employee: "The bonus is a conditional payment, but it becomes mandatory if the employee has fulfilled all the conditions of the company. In this case, not a single instance has established that the plaintiff performed his duties in bad faith." On the contrary, Yevgeny Reizman, adviser to the practice of labor and migration law at Baker McKenzie, is sure that the decision of the Supreme Court corresponds to the understanding of the nature of the award, which developed back in Soviet times: “Even the famous in the USSR“ thirteenth salary ”was not guaranteed and was paid at the end of the year from the profits of the enterprise ".

As Ustyushenko points out, the employer made a mistake, which led to a lengthy lawsuit. The bank set a clear percentage of the salary (66.7%) as a base bonus, without indicating that even in this case it is not guaranteed - the partner of Intellect-S draws attention to such an inaccuracy of the act. In her opinion, the fact that Lipovets's salary, by the standards of the region, was quite large played an important role in the outcome of the case. Ustyushenko suggests that the decision under the same conditions could be different if the salary was, for example, 10%, and the bonus - 90%.

“Judicial practice on labor compensation has always proceeded from the fact that bonuses and other incentive payments are not mandatory for the employer and therefore are not subject to recovery by the court. In this sense, the definition of the Supreme Court was predictable,” said Andrey Popov, lawyer, partner of the law firm. "The court found that the payment of the bonus is carried out in accordance with the Regulation on bonuses. The employer issued an order that the bonus in accordance with the Regulation is 0% for all employees. The provision complies with the law (at least the opposite has not been proven). So the definition of the Sun quite naturally," agreed the lawyer of the Law Firm "" Dmitry Drobyazko. "As part of considering cases of this category, the courts always attach fundamental importance to the content of a specific employment contract and local acts of the employer regarding bonuses. At the same time, it is studied how these documents are worded: can the bonus be considered a mandatory component of wages or should it be attributed exclusively to voluntary rewarding an employee for conscientious work, and also whether the bonus is included in the remuneration system, "explained the lawyer, partner of AB" ", Ph.D. n. Elena Voronina.

The dispute about the recovery of bonuses: how to behave as an employee

Ustyushenko gives advice to the employee:

Carefully study the local regulations that provide for the bonus procedure, keep a copy or make an extract.
If at the familiarization stage there are "loopholes" that will allow the employer to cancel the bonus, you can send an official appeal expressing disagreement with certain points (this can strengthen the employee's position in further disputes).
Keep pay slips for the entire period of work, so that later you can prove the systematic payment of bonuses.

The dispute about the recovery of bonuses: how to behave as an employer

As the definition of VS shows, it is worth pointing out that the premium is not mandatory and guaranteed.
Ustyushenko advises to distinguish between two types of bonuses: those that are included in the wage system (Article 129 of the Labor Code), and the so-called incentive bonuses, which are discussed in Art. 191 TK.
Ivanova recommends explaining in writing what the premium was paid (not paid, reduced) for, with references to the clauses of the local act. "Once you stop doing this, it will become easier for the employee to prove that the bonus refers to unconditional allowances," Ivanova warns.
Ustyushenko warns against the idea of specifying an exact percentage, a fixed amount of the bonus, because such a wording shows that the bonus is not given "for something" and is not tied to any employee's performance.
Reizman recalls that bonus rules must be detailed, they must be approved by order and handed over to employees against signature.
Ustyushenko calls to comply with the rules of their own local regulations. "If the bonus is accrued, for example, on the basis of a checklist, a memorandum from the immediate supervisor and an order from the director, such documents should be available," she insists. And if the rules cannot be followed because they are cumbersome, they need to be changed, the lawyer sums up.

* name and surname changed by the editors

Please tell me if there is such a phrase in the employment contract: For the fulfillment of the obligations stipulated by this Agreement, the Employee is established: official salary in the amount of _____ rubles 00 kopecks;? other incentive payments in accordance with the "Regulations on Remuneration", "Regulations on Bonuses and Material Incentives for Employees". With this wording, are we always obliged to pay a bonus.

Answer

Answer to the question:

This condition of the employment contract should be considered in aggregate and by the local regulations of the organization.

From the text of the employment contract, it is impossible to draw an unambiguous conclusion about the obligation to pay bonuses. On the one hand, the wording of the contract establishes incentive payments. On the other hand, there is no mention of the obligation of such payments.

Therefore, in this situation, you should also refer to the Regulation on remuneration and the Regulation on bonuses.

In this regard, we recommend using unambiguous language, from which it follows that the organization obliged to pay an employee incentive payments or the payment of bonuses remains at the discretion of the employer " in addition, the employee may bonuses and other incentive payments are paid in accordance with the Regulations on Bonuses and Material Incentives".

The bonus, as a rule, has a fixed amount and is set for special ranks, significant work experience, and in other similar cases. When an employer establishes, for example, a bonus for having an academic degree or for professional skills, he encourages the employee to improve his knowledge and skills. And, having achieved an increase in the professional level, the employer, as if indirectly, seeks to improve the quality of the results of the employee's work as a whole. In this case, there is an element of employee incentives.

The bonus payment is of an incentive nature and implies the achievement by the employee of specific results in the performance of labor (official) duties. The employer has the right to establish different conditions (criteria) for encouraging the employee, choosing for this quantitative or qualitative indicators, for example, the absence of disciplinary sanctions on the employee. In other words, the award is rewarded for the successful solution of the set production task. Unlike the allowance, the bonus payment is characterized by a direct connection between the specific result of the worker's work and the incentive measure.

If the employer establishes an allowance or bonus without taking into account the specifics of such payments, then difficulties will arise in exercising the right to stimulate or encourage employees. So, in one case, the employer first established an employee's bonus for professional skills, and then removed it, justifying this by a decrease in production volume and the lack of a full workshop load. The court of second instance ruled in favor of the employee, pointing out that there were no grounds for such actions by the employer, because the quality of work and the qualifications of the employee, that is, the main criteria for assigning a bonus, have not changed. In addition, one employee lost the payment, and not the entire team. As a result, the court declared the order to cancel the allowance for professional skills illegal (appellate ruling of the Chelyabinsk Regional Court dated July 28, 2014 in case No. 11-6993/2014).

In the situation described, the employer made one major mistake. He deprived the employee of the bonus for professional excellence, guided, in fact, by the basis that is typical for the refusal of a bonus payment (failure to achieve certain volumes). It would be possible to avoid a disputable situation or justify the legality of the decision to deprive (reduce) the payment by establishing a bonus instead of a bonus for professional excellence. In this case, the motive for assigning (non-assigning) a bonus would be the quality of work and the achievement (failure to achieve) certain production volumes.

Therefore, when establishing an incentive payment for an employee, it is recommended to choose exactly the type that, according to its specifics, is most suitable for achieving the desired effect in the labor process.

The employee can challenge the non-payment of bonuses due to dismissal

An employee will receive an annual bonus only if he worked for the reporting period

There will be no bonus if during this period an employment contract was concluded with him, but in fact he did not go to work (determination of the Moscow City Court of October 13, 2014 No. 4g / 7-10336 / 14).

When introducing a bonus system, it is necessary to clearly define the nature of payments: regular or one-time. This will make it possible to distinguish between mandatory bonuses included in the remuneration system and those left at the discretion of the employer. The amount of the bonus can be set both in absolute terms and as a percentage of salary.

The director writes out one-time bonuses on an individual basis and, as a rule, on especially solemn occasions or in connection with a specific event, case (anniversary of an employee or company, the birth of a child). Such payments are prescribed outside the wage system, as additional incentives left to the discretion of the employer.

Interest Ask

What will help to justify the optionality of the award?

The unambiguity of the wording, which testifies to the incentive nature of the payment and its dependence on the performance of the employee.
The employment contract clearly lists the payments that are part of the salary (salary and, possibly, a personal allowance). It is not worth describing the specific procedure for calculating the bonus, but it is necessary to indicate that it is not part of the employee's salary and is not part of his salary.
It is advisable to reflect in the local act that the bonus payment is not included in the remuneration system. In addition, it specifies its type (annual, current, etc.) and the cases in which the bonus is paid (performance of a particularly urgent task, making rational proposals). The condition on the availability of free funds for the purpose of encouraging staff will also not interfere. In general, the more carefully the cases and the procedure for calculating bonus payments are prescribed, the more likely it is to justify manipulations with their sizes (appeal definitions,).

Regular bonuses are established within the framework of the wage system and paid monthly, quarterly or at other intervals. The regular nature of the payments actually makes the bonus an integral part, an element of the employee's salary (appellate ruling of the Chelyabinsk Regional Court dated March 19, 2015 in case No. 11-2995 / 2015). For example, this is typical for workers with a piece-bonus wage system, for whom the bonus is an obvious (as salary) component of wages. The formula for its calculation and labor standards are determined in the local act.

Along with monthly bonuses, employers encourage employees with the thirteenth salary based on the performance of the entire company at the end of the year. But not everyone gets it. When an employee leaves before the end of the calendar year, after the termination of employment, employers consider themselves free from obligations and leave former employees without bonus payments.

Then the workers try to recover money through the court. There is an example of a decision when the court sided with the employer because of the conditions in the local act that are mandatory for the employee: six months of work experience and being on the staff of the company at the time of payment. The employer was also helped by the fact that the annual bonus was not included in the wage system and was not mandatory (determination of the Primorsky Regional Court dated January 14, 2015 in case No. 33-319). In another case, the employer lost the case, as the court literally interpreted the internal document, not finding in it restrictions on the payment of bonuses to laid-off workers (ruling of the Yaroslavl Regional Court dated June 21, 2012 No. 33-3160 / 2012).

In our opinion, the presence of restrictive conditions in local acts and the non-payment of an annual bonus to a dismissed employee are illegal, because this violates Art. 132 of the Labor Code of the Russian Federation on the prohibition of discrimination in the establishment of wage conditions. In other words, the only criterion (whether the employee is fired or continues to work) for making a decision on his promotion or refusal to pay is unacceptable.

That is why the courts do not take into account employers' references to the right to dispose of bonuses at their own discretion. Thus, the Bryansk Regional Court included quarterly and annual bonuses in the wage system, considering them part of the employee's salary. The court's arguments were as follows: bonuses are paid for work, that is, for the performance of labor duties, and they are related to the results of activities and the fulfillment of established indicators (appeal ruling dated 03.03.2015). Similar conclusions contain the appeal rulings of the Khabarovsk Regional Court,.

Interest Ask

Can a newly appointed director cancel bonuses for individual employees?

Yes, but only if there are good reasons. An unreasonable decision will allow the employee to recover money.
In practice, a situation is possible when a newly appointed manager reviews the lists of employees for bonuses compiled by his predecessor and issues a new order without the persons mentioned earlier. But such a decision requires justification, not personal discretion.
In the event of a dispute, it will be necessary to prove that the new director acted within his powers, had the right to decide on non-payment or reduction of the previously approved bonus, and he had grounds for this. If there was no convincing reason, then the actions of the employer are recognized as illegal. It was these consequences that awaited the company, whose new director considered the work of the employee to be insufficiently effective, and him unworthy of monetary incentives (determinations of the Supreme Court of the Republic of Bashkortostan dated 17.04.2014 No. 33-5420 / 2014, dated 05.29.2014).
This would not have happened if the new director had taken into account the rules of the local act and had not violated the procedure for calculating bonuses, and had also drawn up documents on violations committed in the performance of labor duties.

So, the provisions of the local act, excluding the dismissed employee from among those who are entitled to the annual bonus, are risky. Therefore, it is better not to use this opportunity to minimize financial costs.

The difficult financial situation of the employer is a reason not to pay a bonus

Establishing a bonus for an employee does not in itself mean an unconditional obligation of the employer to pay it regularly. The employee will receive a bonus only when he fulfills all the conditions stipulated by the local act. It is developed taking into account the following principles: non-discrimination, providing employees with equal opportunities to achieve good performance, etc.

Bonuses, as a rule, presuppose the existence of two objective conditions: the grounds for calculating the bonus and the employer's financial capacity. Therefore, in a local act, it is important to establish a direct link between the implementation of the established bonus system and the financial and economic condition of the company. In case of financial difficulties, this will allow to reasonably suspend bonus payments (determination of the Moscow Regional Court dated December 25, 2012 No. 33-26159 / 2012). For example, a company's difficulties may be in the presence of debt or reaching a certain level of debt.

A situation is possible when financial difficulties are just beginning and further payment of bonuses calls into question the existence of the company. In such a situation, the refusal of a bonus or a reduction in the amount of payments must be justified and stocked up (in case of a dispute) with supporting documents. In our opinion, a professional analysis and a forecast of the expected economic situation in a company or a separate industry based on it can have a very positive value in the matter of proof. Such a document also prescribes a set of measures taken by the employer to overcome a difficult situation. It is signed by an economist, deputy director for economic issues (another specialist), and approved by the head of the organization.

Not always a difficult financial situation is spelled out in the local act as a criterion for non-payment of bonuses. Then you need to use the existing norms of internal documents. So, in one case, the employer won the dispute, since the basis for paying the bonus was a certain level of workload, complexity, quantity and quality of the employee's work. But since this level decreased due to the difficult financial condition of the company (bankruptcy), the court found the employer's actions to not accrue the bonus justified. At the same time, the court did not qualify the actions of the employer as a deduction of bonuses, but recognized the absence of the necessary conditions for payments provided for by the local act (determination of the Voronezh Regional Court dated August 28, 2014 No. 33-4148).

By the way

The bonus can not be set for all employees, but only for certain positions

In this case, evidence will be needed confirming the distinctive features of the work of employees who are assigned a bonus, with references to the specifics of the labor process and other similar criteria.
The employer is free to establish a bonus system of remuneration. He has the right to assign bonuses not to the entire staff of the company, but to limit himself to individual positions (professions) or categories of specialists.
In practice, conflicts arise with employees who, according to the local act, are not entitled to a bonus, but whose functionality, at first glance, is similar to those employees who receive a bonus. For example, a sales manager and a new customer search manager. In order to avoid accusations of discrimination, when developing criteria for assigning payments, one must proceed from objective indicators of the complexity of work in a particular position, paying special attention to the volume and specifics of labor duties.
In the event of a dispute, the presence (absence) of a difference between the functional responsibilities of those employees who receive a bonus and those who do not receive it will be important (appeal ruling of the Lipetsk Regional Court dated March 11, 2013 in case No. 33-609 / 2013).

A violator of discipline can be deprived of a bonus if it is provided for by a local act

To deprive an unscrupulous employee of a bonus, it is not enough to document the fact of a disciplinary offense. It is necessary to include in the local act the commission of such an offense by the employee as a basis for depriving the bonus (determination of the Primorsky Regional Court of 04/15/2014). In our opinion, non-payment of the bonus or reduction of its size is lawful only when a disciplinary sanction is applied to the employee in accordance with the law. Otherwise, the deprivation of the bonus can be regarded as a measure of disciplinary action, which is not allowed by law (and part 4 of article 192 of the Labor Code of the Russian Federation).

Correctly allocate the bonus fund

among employees, the criteria for determining the percentage of personal contribution (participation) will help. Then the unequal amount of the premium will be justified (appellate ruling of the St. Petersburg City Court of October 22, 2014 No. 33-17283).

Therefore, if an employee has committed a disciplinary offense (he was late for work, refused to go on a business trip or skipped work for no reason), then he must first be subject to a disciplinary sanction and, on this basis, deprive him of the bonus. In this case, non-payment of the bonus cannot be considered as a disciplinary sanction (definitions, decision of the Supreme Court of the Russian Federation dated January 23, 2015 No. AKPI14-1384). In addition, they are not rewarded for misconduct.

With respect and wishes for comfortable work, Elena Karsetskaya,

Expert Systems Personnel

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