Deductions from the salary of employees. Withholding from wages - the procedure for deductions according to the Labor Code of the Russian Federation Labor Code of the Russian Federation st 137

ST 137 of the Labor Code of the Russian Federation.

Deductions from employee wages are made only in cases provided for
this Code and other federal laws.

Deductions from the employee's salary to pay off his debts to the employer
can be made:

  • to reimburse the unspent advance paid to the employee on the payroll account;
  • for repayment of an unspent and not timely returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;
  • for the return of amounts excessively paid to an employee as a result of accounting errors, as well as amounts excessively paid to an employee, if the individual labor dispute review body found the employee guilty of non-compliance with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code Code);
  • upon dismissal of an employee before the end of the working year for which he has already received annual paid leave, for unworked days of leave. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.

In the cases provided for in paragraphs two, three and four of the second part of this
articles, the employer has the right to decide on the deduction from the salary of the employee not
later than one month from the date of expiration of the period established for the return of the advance payment, repayment
debt or incorrectly calculated payments, and provided that the employee does not dispute
bases and sizes of retention.

Salary excessively paid to the employee (including in case of improper
the application of labor law or other normative legal acts containing
norms of labor law) cannot be recovered from it, with the exception of cases:

  • counting error;
  • if the individual labor dispute settlement body has recognized the employee’s guilt of not fulfilling labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);
  • if the salary has been excessively paid to the employee in connection with his unlawful actions established by the court.

Commentary on Art. 137 of the Labor Code of the Russian Federation

1. Deductions from the employee’s wages may be made only in cases provided for by the Labor Code of the Russian Federation or other federal laws. The ban on deductions, in addition to cases established by law, provides protection for employees' wages.

2. The content of the commented article complies with the provisions of ILO Convention No. 95 "On the Protection of Wages" (adopted in Geneva on July 1, 1979). Article 8 of the said Convention provides that deductions from wages may be made in the conditions and to the extent prescribed by national law or defined in collective agreements or in decisions of arbitration courts. Workers must be notified of the conditions and extent of such deductions. It is important to emphasize that Russian legislation does not provide for the possibility of deductions from wages on the basis of a collective agreement, since such conditions would worsen the position of the employee compared to the legislation.

Any deductions at the discretion of the employer associated with the assignment of part of the production costs to the employee, the satisfaction of claims by third parties against the employer or employee are not allowed without a court decision or consent of the employee

3. At present, other codes and federal laws have established the possibility of deduction from wages when levying taxes on the income of individuals, when recovering fines as a criminal punishment, when serving a sentence of corrective labor, in the execution of court decisions.

4. Withholdings for the purpose of collecting tax on personal income are made in accordance with the Tax Code. stipulates that organizations from which the taxpayer receives income are required to calculate, withhold from the taxpayer and pay the amount of tax on personal income. These deductions should be made directly from the taxpayer’s income upon actual payment. In this case, the tax amount withheld may not exceed 50% of the payment amount.

5. A fine as a criminal punishment shall be established by a court judgment. In accordance with Art. 31 of the PEC, a person sentenced to a fine shall be obliged to pay it within 30 days from the day the sentence enters into legal force or at another time if the court decided on an installment plan. A convicted person who fails to pay the fine within the prescribed period is recognized as maliciously evading the payment of the fine, and if the fine is established as an additional form of punishment, the bailiff executes the collection of the fine by force (Article 32 of the Penal Code). In this case, one of the enforcement measures is the recovery of wages in accordance with Ch. 12 of the Federal Law of October 2, 2007 N 229-ФЗ "On Enforcement Proceedings".

6. Deductions by virtue of a court decision are also made when the employee is serving correctional labor as a punishment for a criminal offense. The basis for the production of such deductions is a court sentence. In accordance with Art. 40 PECs of the convict's wages are deducted in the amount established by the court verdict. The correct and timely deduction from the wage of the convict and the transfer of the amounts of deduction in the prescribed manner are assigned to the employer. The procedure for the production of deductions is established by Art. 44 PEC.

7. Withholding from wages is also possible on the basis of writ of execution - writ of execution issued on the basis of a decision, sentence, ruling and order of the courts (judges); settlement agreements approved by the court; court orders and so on. In accordance with Art. 98 of the Federal Law "On Enforcement Proceedings", salary recovery may be levied upon execution of enforcement documents containing a requirement to recover recurring payments; upon collection of amounts not exceeding 10 thousand rubles; in the absence or insufficiency of the debtor of funds and other property to fulfill the requirements of the executive document in full. Writ of execution and other writ of execution shall be sent for the collection of the penalty to the employer.

8. The Labor Code of the Russian Federation provides for the possibility of deductions from wages to pay off the employee's debt to the employer in the cases specified in art. 137 of the Labor Code of the Russian Federation, as well as in order to compensate the employee for property damage caused to the employer.

On the procedure for compensation by an employee of property damage caused to an employer, see.

9. An employee's debt to the employer may arise as a result of an advance payment to the employee on account of wages or in connection with a business trip or transfer to work in another locality. In the event that the employee did not work out such an advance or did not use the amount issued in advance for the purpose of a business trip or moving to another locality and does not return it voluntarily, its amount may be deducted from the employee's salary.

For the amounts issued to the employee on business trips, see her.

10. An employer’s order to withhold advance payments from wages may be made subject to two conditions: 1) the employee does not dispute the grounds and amount of deductions; 2) an order is made no later than a month from the day the deadline set for the return of the advance is expired.

An employee's objection to the grounds and amount of the deductions must be expressed in writing. Moreover, he may refer to the illegality or groundlessness of the return of these amounts, as well as to the incorrect determination of their sizes.

The period of one month begins from the day set for the return of the advance.

When returning an unspent advance paid on a salary account, such a period is established by agreement of the parties to the employment contract.

For an advance issued for a business trip, the return period is three business days after the employee returns from the business trip (clause 26 of the Regulation on the specifics of sending employees on business trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749).

11. Debt to the employer may also arise in the event that the employee pays excessive amounts due to a counting error. A counting error should be understood as an error in arithmetic operations when calculating the amounts payable. An employer’s order to deduct from the salary excessively paid amounts due to a counting error is possible in the absence of a dispute with the employee regarding the grounds and amount of these deductions, provided that the order is made within a month from the date of payment of the incorrectly calculated amounts. If the employer misses the one-month period, the excessively paid amounts to the employee can be recovered in court.

Amounts paid out unduly due to improper application of labor laws, collective agreements, agreements or labor contracts, as well as organizational and technical errors (for example, when transferring funds to a bank account of an employee again, are not the result of a counting error) ) See also Determination of the RF Armed Forces of January 20, 2012 N 59-B11-17.

12. Withholding shall be subject to amounts excessively paid to the employee in the event that the individual labor dispute review body recognizes the guilt of the employee in failure to comply with production standards or idle time.

For wages in case of failure to meet production standards, see art. 155 Labor Code of the Russian Federation and commentary on it.

For pay when idle, see Art. 157 of the Labor Code of the Russian Federation and commentary on it.

13. Withholding shall be subject to the amounts paid to the employee as payment for the leave, in case of his dismissal before the end of the working year for which the leave is granted.

On the procedure for granting leave, see Art. 122 of the Labor Code of the Russian Federation and commentary on it.

In case of dismissal of the employee before the expiration of the working year for which the leave is granted, deductions are made upon final settlement with the employee. This rule does not apply when dismissing an employee on the grounds provided for in paragraph 8 of Art. 77, p. 1, 2, 4 of Art. 81, items 1, 2, 5 - 7 of art. 83 of the Labor Code of the Russian Federation.

14. Withholding shall be subject to amounts excessively paid to the employee in connection with his unlawful actions established by the court. The commented article does not provide for special rules for this type of deduction. Since the unlawfulness of the employee’s actions has been established by the court, the amount to be withheld is also established in court. The deduction itself in this case is made according to the rules established for deductions based on a court decision.


Fulfillment of labor duties in our time is not free, since each employee is paid a salary. The legislation provides for cases when the amount of payment will be reduced as a result of deduction from the salary stipulated by article 137 of the Labor Code of the Russian Federation and other federal laws. To know more about the rights and obligations, as well as the procedure for the collection of salaries, you should consider this issue in more detail.

payroll deduction

In this law, and specifically in article 137 of the Labor Code of the Russian Federation, cases are provided that provide the employer with the right to withhold a certain amount from his salary. They are as follows:

  • for an unspent advance payment issued in advance;
  • repayment of unspent advance, which was not returned on time;
  • for erroneous accrual of an amount greater than the prescribed amount;
  • for paid annual leave, if the dismissal occurred before the work year ended.

This salary recovery is possible only within a month after the occurrence of the event. Also, the employee should not have any objections, including challenging him in court.

And you can find out how much percent of the salary is an advance in this article.

Payroll Income Tax

Mandatory penalties are carried out from the salary, which include personal income tax and penalties based on the results of the execution of the writ of execution. PITs are deducted from the salary by employers, based on the monthly amount calculated by tax agents. Income tax is 13 percent of salary after deduction. This tax rate of 13 percent is always taken into account for standard deductions provided for in Article 218 of the Labor Code of the Russian Federation. For some other types of income, there may be an individually calculated rate.

Withholding of alimony from wages on the writ of execution

The existence of a writ of execution is mandatory when withholding child support. It indicates the size of the payment, which is set in a solid cash amount, or they can calculate a certain percentage of the salary. The collection of alimony occurs monthly. After calculating the salary for this there is only 3 days. It is worth noting that child support is transferred after the personal income tax has been deducted from the total amount. Also, when calculating the amount of the amount of alimony, you can not take into account material assistance and travel expenses.

The procedure for the collection of salaries for the payment of alimony is quite simple. The money goes to the account, which is usually prescribed in the writ of execution. This account belongs to the FSSP, and money is already being transferred from it to the recipient's account. Moreover, at his request, they can be received not every month, but on a quarterly basis. If the employee's income level rises, then this information must be reported by the employer, otherwise sanctions will be applied to him.


Withholding application - sample

The employee can independently take the initiative to recover funds from the salary. At the same time, he needs to write a statement addressed to the employer and indicate the following data in it:

  • “cap” is written at the top, which indicates the name and position of the leader and employee;
  • document's name;
  • request and reasons for penalties;
  • amount of penalties;
  • details for sending funds;
  • start date and collection procedure;
  • date and signature.

Order to withhold money from wages

In the Labor Code of the Russian Federation there is no official form for writing an order for automatic payment of cash from a salary. The main thing is to indicate the following information:

  • company name;
  • title of the document;
  • date and number of the order;
  • collection data;
  • signature of manager, accountant and employee.

Although the order has a free form of writing, its content must necessarily contain information about the person from whom the collection is made, in what amount, and also what are the reasons for this.

The maximum amount of deductions from salary under Article 138

Defines the limitation on the size of deductions from wages. According to this article, the total amount of all deductions from wages cannot exceed 20%, except for cases of other content in the Federal Law. In some situations, the maximum size can increase up to 50%. This can happen first and foremost in the execution of a writ of execution. It is also possible if several executive documents are present. There are cases when the maximum amount of recovery can be increased up to 70%. They are as follows:

  • correctional work by court order;
  • alimony;
  • when causing harm to health;
  • due to the crime;
  • payments due to the loss of the breadwinner.

It is important to note that the increased amount of payments can be deducted only for child support for minor children, in any other cases this is not more than 50%.

Thus, salary deductions are in accordance with the norms specified in article 137 of the Labor Code of the Russian Federation. The application procedure must be clearly followed in order to avoid debt and liability for its occurrence.

Practice shows that the occurrence of a labor dispute between and the employer regarding the portion of the money held by the second from the earnings of the first is a far from common phenomenon. The Labor Code, article 137, reveals all the nuances of such a delicate problem.

Labor disputes arise quite often ...

Withholding some of the funds earned by an employee is possible only in situations that are recorded in the Labor Code or are affected by other federal laws.

In order to withhold part of the earnings intended for the employee, the employer must make an appropriate decision regarding the recovery of this kind.

It is possible to keep a certain share of the employee’s salary with a view to timely arising before the employer in a number of cases:

  • if you want to reimburse the unspent advance that was issued to the employee on account of the salary;
  • in order to pay back an unspent or in due time non-refunded advance issued on the occasion of a business trip or if it took place in another region, etc.
  • when refunding the amounts that were paid to the employee as a result of accounting errors, as well as the amounts that the employee was handed over unnecessarily, in situations of recognition by the special body that is created to resolve specific labor disputes, the employee is guilty of downtime or that he did not fulfill labor standards;
  • if the employee leaves before the end of that year, on the account of which he has already managed to receive due to him. Nothing will be held back only when the dismissal of the employee occurred in accordance with the grounds provided for by a number of articles of this Code.

The employer retains the right to make a decision regarding the deduction of a certain share from the employee’s salary no later than a month after the expiration of the period that was set for the repayment of the advance payment, repayment of debts or erroneously charged, but only in cases where the employee does not challenge fact, or retention rates.

The amount of wages paid out excessively to an employee cannot be recovered from him in specific cases:

  1. if there was a counting error;
  2. if the body involved in the examination of such facts recognizes the employee's share of guilt in non-fulfillment or violation of labor standards, simple;
  3. if it was unnecessarily issued to the employee in connection with his actions that are illegal and established in court.

Commentary on Article 137 of the Labor Code of the Russian Federation

The Labor Code will provide answers to all questions.

In accordance with the fact that wages, in fact, are the main source of income in many Russian families, the Labor Code establishes that financial deductions from wages are allowed only in situations provided for by the provisions of this article.

Any other cases of deductions are determined only by the provisions of federal law. These may include:

  • on income of individuals;
  • (we are talking about tax, administrative, criminal);
  • etc.

In all these situations, deduction is carried out solely on the basis of law or executive documents produced by the employer. As practice shows, it is especially difficult to solve the problem when it is necessary to establish the presence or absence of a counting error.

We are talking about the inaccuracy of arithmetic operations associated with the calculation of the amounts to be paid, about possible typos, typos. The following cannot be recognized as a counting error: incorrect application of the relevant legal norms, erroneous transfer of a sum of money to a bank account.

In accordance with the decision made by the employer, it is possible to deduct from the employee’s salary the excessively paid amount as a guarantee payment in case of non-fulfillment of labor standards or simple. However, this can only be done if the employee’s guilt is established by a special body.

They can keep their salaries for paying alimony, paying off tax arrears

It is possible to withhold the amounts issued to the employee on account of vacation pay, but only if the dismissal took place before the end of the year for which the vacation was granted. There are exceptions.

These include: the reason for dismissal at the initiative of the employer, not related to the guilty behavior of the employee, as well as dismissal due to the refusal of the employee to be transferred to another job.

The right of the employer to return money for days of vacation not worked by the employee cannot be determined depending on the availability or absence of an accrued employee for the time of dismissal, but for now, from which deduction of this kind can be carried out.

Otherwise, there would be a violation of the principle of equality of all workers. They would be put in different situations, depending on whether there has been an accrual of any amounts. You can not deduct part of the money from the employee’s salary in any other situations, except as described above.

It is impossible to recover from an employee’s salary if the excess payment is due to the improper application of laws or regulations of a different kind (meaning incorrect determination of salary, tariff category, etc.).

In order for an employee to have an idea of \u200b\u200ball the details of the deduction made and his legality, he must be familiar with the contents of Article 137 of the Labor Code of the Russian Federation. In this case, it will be possible to most painlessly decide on the legality of such a deduction.

“Time to talk”: on violations of the labor code. Watch the educational video:

1. Deductions from the employee's wages may be made in cases established by law, i.e. regardless of the will of the employer, and by his decision. Article 137 of the Labor Code of the Russian Federation determines the grounds for deductions made by the decision of the employer to pay off the debt of the employee, and contains an exhaustive list of such grounds.

It must be emphasized that the employer has the right, but is not obligated to make deductions. This directly follows from part 2 of article 137 of the Labor Code of the Russian Federation.

2. The grounds and rules for deductions from employee wages are established by the Labor Code in accordance with ILO Convention No. 95. Article 8 of the Convention provides that deductions from wages are permitted in the conditions and to the extent prescribed by national law or defined in collective agreements or decisions arbitration courts. Workers must be notified of the conditions and extent of such deductions.

3. It is necessary to distinguish from deductions the recovery of the amount of damage caused by the employee (see commentary to Article 248).

4. Along with deductions carried out by order of the employer and aimed at repaying the employee's debts, there are deductions made on the basis of federal laws. They are aimed at fulfilling the duties of an employee to the state or other persons. The current legislation establishes the possibility of withholding taxes on personal income taxes, administrative fines, fines as a criminal punishment, certain amounts (part of the salary) when serving sentences in the form of corrective labor, monetary amounts by court decision (writ of execution).

5. Article 137 of the Labor Code of the Russian Federation establishes the procedure and conditions for deductions. Firstly, the employer must comply with the established deadline - a month from the end of the deadline set for the return of the advance payment, repayment of debt, etc. Secondly, the lack of disagreement with the employee over the grounds and amount of deductions.

6. Of particular difficulty in practice is the question of determining the presence (absence) of a counting error.

A counting error should be understood as an error in arithmetic operations when calculating the amounts payable, as well as other technical errors (typos, typos, etc.). The incorrect application of the relevant legal norms is not a counting error.

7. By the decision of the employer, amounts that are excessively paid to the employee as guarantee payments in case of failure to comply with labor standards or downtime may be withheld. This is possible if the individual labor dispute review body establishes the employee’s guilt of failure to comply with labor standards or idle time (see also commentary to Articles 155, 157).

8. Amounts paid to the employee as payment of leave may be withheld if he is dismissed before the end of the working year for which the leave is granted. The exception is the grounds for dismissal at the initiative of the employer, not related to the guilty behavior of the employee (paragraphs 1, 2, 4, part 1 of article 81), and dismissal due to the refusal of the employee to transfer to another job, necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the absence of the employer of the relevant work (Section 8, Part 1, Article 77).

"Legislation and Economics", 2009, N 5
ARTICLE 137 OF THE LABOR CODE OF THE RUSSIAN FEDERATION: PRACTICAL ASPECT
Practice has shown that among labor conflicts, which occupy a significant place among the reasons causing the labor dispute between the employer and the employee, their disagreements in assessing the legality of withholding the first money from the remuneration of the latter are highlighted. The emergence of such disagreements is to a large extent facilitated by the ambiguous statement of the norms contained in Art. 137 of the Labor Code of the Russian Federation (hereinafter - the Labor Code of the Russian Federation or the Code). It also does not contribute to mutual understanding and deduction by the employer from the employee’s salary (hereinafter referred to as the salary) of the amounts determined in the local act of the employer created in order to maintain labor discipline. The totality of these problems has become the reason for the study of the norms of labor legislation governing this type of labor relationship.
Types and methods of collection and retention
For holding, i.e. not charging any part of the earnings payable to the employee and transferring it to the proper person, it is necessary for the employer or other authorized body to decide on the recovery of the amounts specified by law from the employee. In this regard, penalties are subdivided into those made by law, indisputable, including by executive inscription, court decisions, administrative ones, on instructions from state bodies and officials who have been granted the discretionary right to impose fines, write off or otherwise charge money from citizens funds of the amount, as well as the debt arising from them in the amount established by law.
And if in practice most types of penalties do not cause the employer's representatives to explain to them the rules for their implementation, then their appearance as indisputable (including the executive inscription) requires a detailed clarification of its legal essence. So, the collection in an indisputable manner in jurisprudence means the compulsory collection of monetary amounts that formed the debt of the obligated person (debtor) to the collector, by their deduction from funds belonging to the debtor (including an individual), in order to compensate for this debt without appeal to the authority resolving property disputes. Collection in an indisputable order is allowed only in cases expressly provided by law, and only by officials and authorities named therein. Recovery by executive inscription is one of the special cases of the indisputable collection of a certain amount of money due to the debtor from the debtor; it is carried out on the basis of an order from a notary public made on a genuine debt document. Thus, the recovery in an indisputable manner is one of the types of penalties committed by the compulsory method, and only in cases where the debtor does not repay the debt arising from it on a voluntary basis. In turn, withholding is a way to enforce the collection and enforce the obligations of the debtor.
All possible deductions from the employee’s salary can be divided into the following three groups of his obligations established by federal law, before:
- by the state (for example, payment of taxes, fines, etc. - Article 138 of the Labor Code of the Russian Federation);
- by citizens, public organizations and legal entities (for example, according to executive documents on the recovery of alimony, compensation for harm, as well as for repayment of loans, transfer of contributions, etc. - Article 138 of the Labor Code of the Russian Federation);
- the organization in which he works (Article 137 of the Labor Code of the Russian Federation).
We analyze the last group of deductions. Its characteristic feature is the following: the representative of the employer, who has the right, on the basis of local legal acts, to make a decision on withholding specified in Art. 137 of the Labor Code of the Russian Federation of the types of its debts to the employer, issues an order (order) to recover a certain amount of debt from the employee’s salary, and he himself implements this decision by not charging these amounts for payment.
General and private position of the legislator on withholding amounts
from employee salary
So, the rules on the possibility of deduction from the employee's salary of any funds due to him in a voluntary, administrative, indisputable or judicial order are placed by the legislator in Art. Art. 137 and 138 of the Labor Code of the Russian Federation. However, the content of the latter requires a separate study. As indicated in Part 1 of Art. 137, deductions from the employee’s salary are made only in cases provided for by the Code and other federal laws. Thus, deductions from the employee’s salary based on other acts located in the legal hierarchy below the federal law (for example, local ones) are unlawful. In case of disagreement of the employee with penalties on the basis of local acts, the amounts withheld by the employer shall be refunded either voluntarily or forcibly. It is possible to force the employer to return (re-charge) the deducted (collected) amounts by him unlawfully by the decision of the bodies considering individual labor disputes (hereinafter referred to as ORITS; article 382 of the Labor Code of the Russian Federation), as well as according to the relevant instructions of the prosecutor (part 4 of article 353 of the Labor Code of the Russian Federation) or labor inspector (Articles Art. 356 and 357 of the Labor Code of the Russian Federation).
In h. 2 Article 137 to the following cases of employee arrears to the employer, allowing its deduction from his salary, are the following:
- reimbursement of the unspent advance paid to the employee on account of salary;
- repayment of an unspent and not timely returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;
- refund of amounts excessively paid to the employee as a result of accounting errors, as well as amounts excessively paid to the employee if ORITS found the employee guilty of non-compliance with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or downtime (part 3 of article 157 of the Labor Code of the Russian Federation );
- refund of amounts for unworked days of vacation, which is carried out upon dismissal of the employee before the end of the working year, on account of which he has already received annual paid leave. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of paragraph 1 of Art. 77 or paragraph 1, 2 or 4 hours, 1 tbsp. 81, p. 1, 2, 5, 6 and 7 hours. 1 Article 83 of the Labor Code of the Russian Federation.
Only for this group of deductions from the employee’s salary, the legislator provided (in an exemption from the general rules on mandatory collection related to other groups of deductions) a special procedure for collecting from the employee his debts to the employer, endowing the latter with discretionary powers. The discretion of the employer is expressed in the fact that he, at his discretion, collects the advance payments received by the employee, indicated in para. 2 and 3 hours. 2 Article 137 of the Labor Code of the Russian Federation. In the same way, he can withhold the amount indicated in para. 4 h. 2 tbsp. 137, as excessively paid to the employee as a result of a counting error.
The employer's discretionary law also extends to other cases specified in para. 4 h. 2 tbsp. 137, but with substantial disclaimers. Retention on them is possible if the employee’s fault in non-compliance with labor standards or downtime is recognized not by the prosecutor or labor inspector, but by ORITS. This means that the employee’s already paid wages, when they were simple and didn’t comply with labor standards, did not take into account this legally significant circumstance and amounted to a larger amount than indicated in part 3 of article 155 and h. 3 Article 157 of the Labor Code of the Russian Federation. In an indisputable manner and even without observing the conditions specified in part 3 of article 137, the legislator allowed the employer to deduct excessively paid amounts from the employee’s salary in the case specified in para. 5 h. 2 tbsp. 137.
So, in Part 2 of Art. 137 is a list of cases in which the employer has the right (but is not obliged) to carry out deductions made to repay the employee's monetary obligations to the organization where he works. Moreover, as indicated in this part of this article, the deduction is made precisely from the employee’s salary in order to cover his debt to this organization arising from both his legitimate and unlawful acts.
We note immediately: for all those listed in part 2 of article 137 cases, the Labor Code of the Russian Federation does not impose an obligation on the employer to notify him in advance of holding any amounts from the employee’s salary. The performance of this noble act is, as it were, implied, but the theoretical presumption of the good faith of the employer is rarely confirmed by practice. Consequently, the employee will become aware of the deduction of these amounts, as a rule, on the day of receiving the salary (in a smaller amount than he planned). Another option is possible if the amount is insufficient (taking into account the rules of Article 138) for the full recovery by the employer at one time of excessively paid amounts, when the employee finds out that he has a debt to the employer, but already from the document he received, for example, a pay slip issued per day salary payments (part 1 of article 136).
In the above situations, the employee must either, having received an amount accrued to him by the employer less than he expected, immediately contact him in writing with a request to recalculate it, or refuse to receive it altogether, thereby expressing his disagreement with the deduction made. In this situation, the employer needs to draw up an act of refusal, which will be proof of his attempt to fulfill his obligation to pay salaries. Otherwise, the employee will have the opportunity to attract the employer through ORITS to liability for incorrectly accrued and not paid wages in a timely manner. But this can only happen if the employee has the benefit of resolving the dispute over the right to amounts that have not been additionally credited to him by the employer (Articles 236 and 237 of the Labor Code of the Russian Federation).
In h. 3 Article. 137 legislator established: in the cases provided for in para. 2, 3 and 4 parts 2 of this article, the employer has the right to make a decision on deduction from the employee’s salary no later than a month from the day the deadline set for returning the advance payment, repayment of debts or incorrectly calculated payments, and provided that the employee does not dispute the grounds and retention dimensions. Therefore, these rules do not apply to para. 5 part 2 of this article, talking about the return of amounts for unworked days of vacation. It is for this case that the employer is not required to either comply with the deadlines or to clarify with the employee his intentions to challenge the grounds and the amount of withholding of amounts for advance leave, since the employer does not have time for this because of the type of withholding associated with the time the employee was dismissed. Nevertheless, it must be taken into account that the same circumstances can arise for any other deductions, but the legislator for some reason ignores the possibility of their real occurrence.
Regarding other grounds for withholding employee debt listed in part 2 of article 137, the following should be noted. Neither in the Labor Code of the Russian Federation, nor in other normative acts related to these types of deductions (except for the business trip report), a period is defined for either literally voluntary or mandatory, but voluntarily returning the employee the amount of the debt formed for him. Thus, the legislator deprived the employer of the opportunity to act in the manner prescribed by Part 3 of Art. 137, because it does not have a reference point from which it is necessary to calculate the monthly period that is acceptable for collecting debt in an indisputable manner or in any other compulsory way. Moreover, applied in part 3 of article 137 the meaning of the concept of “indisputable recovery” is clearly ambiguous. If part 3 of this article does not prescribe and therefore only the implied obligation of the employer to find out from the employee whether he will dispute with him or in the ORITS the basis and amount of the intended deduction, it is completely inappropriate to talk about the indisputable order of these penalties, and this is when the worker practically cannot know about them in advance.
Suppose an employee is informed about it well in advance of the deduction and agrees with the basis and amount of his debt, but, as it turned out, prefers to pay it off himself when he has a financial opportunity. Since such a case is not taken into account by the legislator and the term for voluntary or obligatory self-repayment of the debt has not been established, the employee can repay his debt immensely. Consequently, the rule of Part 3 of Art. 137 is valid if the period of voluntary or compulsory self-return is established, i.e. this rule applies only to the case of advance travel. This means that if the employer’s order to withhold the debt has not been made within a month from the day the deadline set for returning the advance payment (for example, on a failed business trip) expires, the employer loses the right to collect the corresponding amounts in an indisputable manner based on his decision. If, in violation of the procedure (exceeding the term and (or) the employee’s disagreement with the deduction), the employer withholds the amount of the debt, this penalty will be unlawful, which will oblige the employer to return the deducted amount voluntarily, and in case of refusal - by force.
Based on the foregoing, recovery of monetary amounts when an employee disputes the basis and amount of withholding to pay off almost any type of advance payment, as well as if the employer misses a month period, can be compensated for these amounts only by court order, which, as will be shown later, is also problematic (art. Articles 386 and 387 and part 2 of Article 392 of the Labor Code of the Russian Federation). Nevertheless, the employer should not forget that the List of documents is still in force, according to which debts are collected in an indisputable manner on the basis of executive inscriptions of bodies performing notarial acts, approved by Resolution of the Council of Ministers of the RSFSR of March 11, 1976 N 171 (as amended by dated December 30, 2000), where the following types of employee debt arising from labor relations are indicated:
- an unworked advance paid on a salary account, a lump-sum allowance, travel expenses and per diem issued to him upon conclusion of an employment contract for work in industry, construction or transport in connection with non-arrival at the place of work;
- the amount of money for bedding issued to him and not returned to him upon dismissal from work;
- the amount of money for uniforms remaining for the dismissed employees of associations, institutions, enterprises, organizations in which the wearing of uniforms is introduced;
- the amount of money assigned to materially responsible employees of associations, state, cooperative and public organizations, enterprises and institutions, in case of dismissal of these employees and the issuance by them of obligations to pay off the specified debt.
The employer needs to know that when the amount of the debt due to him from the debtor is withheld on the basis of the notary’s executive inscription, the rules on the period of circulation, the types of documents provided to the notary and other organizational requirements must be observed, as well as the enforcement procedure specified in Section. VII Civil Procedure Code of the Russian Federation.
In h. 4 Article. 137 the legislator determined that salaries paid in excess to the employee (including in the case of improper application of labor laws or other normative legal acts containing labor law norms) cannot be collected from him, with the exception of cases:
- counting error (para. 4 part 2 of article 137);
- if ORITS is recognized as guilty of the employee for failure to comply with labor standards (part 3 of article 155) or simple (part 3 of article 157) (paragraph 4 of part 2 of article 137);
- if the salary has been excessively paid to the employee in connection with his illegal actions established by the court.
Among those listed in Part 4 of Art. 137 exceptional cases when it is possible to recover excessively paid salaries, there are no most cases from part 2 of the same article, except for the cases contained in its para. 4. In h. 4 Article 137 there are no such types of debt repayment, such as:
- reimbursement of the unspent advance paid to the employee on account of salary;
- repayment of an unspent and not timely returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;
- refund of amounts for unworked days of vacation, carried out upon dismissal of the employee before the end of the working year, on account of which he has already received annual paid leave.
Consequently, already in Part 4 of Art. 137 the legislator either changed his mind about making deductions from these three types of overpaid payments, or committed normative negligence, creating an intra-article conflict of norms and a logical inconsistency of part 2 of part 4 of this article.
In the absence in the Labor Code of the Russian Federation of a special (labor and legal) definition of the concepts of “retention” and “recovery”, they are applied either in their general legal meaning or in the general literary that is given to them in the explanatory dictionaries of the Russian language. For any of these approaches, the words “hold” and “recover” in the context of Art. 137 of the Labor Code of the Russian Federation are interrelated as a cause (recover) and a consequence (hold). Thus, based on the content of h. 4 Article. 137, the cases listed in para. 2, 3 and 5 hours. 2 Article 137, are not formally exclusive, and it is not possible to withhold amounts excessively paid to the employee. Apparently, in Part 4 of Art. 137 the legislator has in mind penalties, decisions on which are not made by the employer, but by other competent authorities, as indicated by the duplication in this part of the article of the cases introduced in para. 4 h. 2 tbsp. 137, and this further aggravates the possibility of an unambiguous understanding of this article as a whole and requires an explanation of the procedure for its application at the level of the Supreme Court of the Russian Federation.
If the interpretation of part 4 of art. 137, then the penalties listed in para. 2, 3, and 5, part 2, are related to cases where withholding is possible if the salary was paid unnecessarily to the employee in connection with his unlawful actions established by the court. Involuntarily, this exceptional case itself, supplementing the cases listed in part 2 of this article, with an unlimited number of cases of excessively paid salaries to the employee, attracts attention if the court determines that this part of it was received by the employee as a result of his illegal actions or inaction.
Specification of norm analysis
set out in part 2 of article 137 Labor Code of the Russian Federation
Analysis of the content of the cases listed in para. 2, 3 and 5 hours. 2 Article 137, allows to draw at least two conclusions.
Firstly, these cases are literally not connected with the unlawful actions of the employee, as a result of which the salary was paid to him unnecessarily, since the employer makes the payments indicated in them, guided by the relevant provisions of the acts regulating labor relations. However, this conclusion is admissible under one condition: if only the employee did not mislead the employer about the rationality of their payment, based on any of their selfish goals (for example, in connection with the intended operational dismissal after receiving them). Then a rhetorical question arises, to which a priori there is a negative answer: can it be attributed to unlawful actions of the employee his refusal to voluntarily return the excessively paid amounts, if for most types of deductions the legislator has not even established a period for the obligatory compensation of these amounts by the employee?
Secondly, these cases are associated not only with the deduction of excessively paid amounts from the salary. They relate to other payments, if debts need to be collected at the final settlement with the employee. For example, the case referred to in paragraph. 5 h. 2 tbsp. 137, is clearly not connected only with the salary, since here we are talking about all payments that form the amount determined in the final calculation with the resigning employee (part 5 of article 80, part 4 of article 84.1 and article 140 of the Labor Code of the Russian Federation).
In connection with such errors in the legislative activity of the legislator, we consider each type of retention described in Part 2 of Art. 137, separately, we will try to identify their true meaning and the legal consequences that they generated for the parties to the employment contract. Moreover, in order to simplify a rather critical analysis, we will not take into account the defectiveness of Part 4 of Art. 137 in relation to her part 2, attributing it to "counting errors of the legislator", and we will consider only the intrasystem legal connection of Art. 137, limiting it to three parts. At the same time, we take into account that the legislator with the possibility of withholding any of those listed in Part 2 of Art. 137 types of indebtedness arising from the employee to the employer associates this lawful action with the latter observing the following state guarantees and the procedural rules established in the Labor Code of the Russian Federation:
- the system of basic state guarantees for the remuneration of workers includes a restriction on the list of grounds and amount of deductions from salaries by order of the employer, as well as the size of taxation of income from salaries (Article 130);
- upon payment of salary, the employer is obliged to notify each employee in writing of its component parts due to him for the corresponding period, the amount and basis of the deductions made, as well as the total amount of money payable (part 1 of article 136);
- limitation of the size of deductions from salaries (Article 138).
None of the noteworthy comments on the Labor Code of the Russian Federation discussed below are problems with the application of Art. 137 did not receive a clear explanation. In addition, in the available specialized literature and in the current materials on the generalization of judicial practice, there are no unequivocal answers to questions arising from law enforcement officers related to the timing and sources of deductions, their size and other related organizational procedures. This state of affairs has developed, apparently, because the application of both the Code and other by-laws related to this topic raises more questions than these sources of legal regulation contain answers to.
Analysis of the paragraph of the second part of Article 2 137 Labor Code of the Russian Federation
The legal mechanism for the implementation in practice of the legislative requirements on the employer's ability to withhold employee debts from his salary under para. 2 h. 2 tbsp. 137 looks like this. Deductions from the employee’s salary to pay off his debts to the employer can be made to reimburse the unspent advance paid to the employee on account of the salary. The legally relevant circumstances for applying this type of deduction (let's call it “salary advance”) will be the following:
- the fact that the employee received a salary advance payment, which on the basis of Part 6 of Art. 136 paid to him on account of the potentially due salary in full for work in a particular month, according to the results of which it turned out that the total salary was accrued less than the size of the salary advance already received;
- the absence of legal significance for the employee’s non-production of the full salary, from which the employer determined the amount of the advance payment (for example, the employee’s illness, his involvement in the performance of public or state duties), when he retained the average earnings, or his dismissal from work, etc.
Let me remind you that there is no normative requirement for a percentage or other ratio between the size of the advance payment and the amount of the monthly wage set for the employee in the Labor Code of the Russian Federation. As for the Decree of the USSR Council of Ministers of May 23, 1957 N 566 "On the procedure for the payment of wages to workers for the first half of the month", acting in accordance with Art. 423 of the Labor Code of the Russian Federation in so far as it does not contradict the Code, it can hardly be considered applicable to all employees on a number of formal legal grounds indicating incomplete compliance with the Labor Code of the Russian Federation;
- the term for the employer to make a decision to forcibly withhold the difference between the paid salary advance payment and the accrued salary cannot exceed a month from the date the deadline set for the employee to voluntarily return the salary advance payment. The question immediately arises: in what regulatory legal act is the deadline for the voluntary return of a salary advance paid by an employee unnecessarily paid on a salary basis? There is no answer to this question! Consequently, there is no legal mechanism to retain this advance, available for its application at the level of the employer, and not the court, which can sometimes afford to apply general legal methods to overcome legal gaps in order to make a decision on withholding this type of employee debt;
- challenging the employee of the basis and amount of retention. This rule requires additional regulation up to clarification of the legal mechanism for its implementation, at least in by-laws. As already noted, the employee can learn about this type of deduction only on the day the salary is paid and provided that the employer abides by the rules set forth in parts 1 and 2 of art. 136. Suppose that the next time a salary is paid, its advance payment exceeded the amount that the employer would have to accrue to the employee under the employment contract, but there are no other payments due to the employee. In this case, the employee’s debt will be indicated on the pay slip, and until the next salary advance payment or the final payment of the remaining part of the salary for the next month, the employee still has the opportunity to challenge both the size and the basis of this debt. If the debt was withheld from other payments that do not form the composition of the salary, then what is the possibility in advance to challenge the employer the size and basis of the deduction of the allegedly overpaid amount already made by him in real life? Thus, defective norms of labor legislation with this type of retention lead to the appeal of an employee for protection of his right to pay to ORITS or administrative authorities.
Analysis of the paragraph of the third part of Article 2 137 Labor Code of the Russian Federation
Analysis of the content of the rules defining the rules of deduction from the salary based on para. 3 h. 2 tbsp. 137, allows us to say that almost all the problems characteristic of retention under para. 2 part 2 of this article is inherent in this case. So, this paragraph allows the deduction from the employee’s salary to pay off his debts to the employer, which was formed due to an unspent and not timely returned advance paid in connection with a business trip or transfer to another job in another locality, as well as in other cases. Such cases may be any so-called issue of money on a salary account related to the acquisition, for example, of household equipment for a clean-up day or stationery, or receipt of funds for payment in a specialized workshop for refilling cartridges for office equipment, etc.
In contrast to the unresolved problems with the deadline for the previously considered case (paragraph 2 of Part 2 of Art. 137), here the deadline for voluntary-obligatory return by the employee of a travel advance in the regulatory legal act is set and equal to three working days calculated from the moment of his return from the trip to place of permanent work.
At the same time, the employee is formally obliged to return from a business trip not to his place of residence or registration, but precisely to the place where the organization that sent him on a business trip is located. The requirement to record on the vehicle ticket the date of arrival at the location of the organization sending the employee excludes the possibility of traveling on a business trip on his own vehicle and walking on foot. Thus, the fixation in the ticket of a vehicle’s other place of arrival than the organization’s location is not recognized as the day of arrival from a business trip, which affects the time from which the deadline for timely return to the employer of the unused portion of the travel advance received by the employee will be calculated. In accordance with paragraph 26 of the Regulation on the specifics of sending employees on business trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749, the employee, upon returning from a business trip, must submit to the employer not only an advance report on the amounts spent in connection with the trip within three days , but also to make a final payment with him on the cash advance for travel expenses issued to him before leaving for a business trip.
Consequently, only three days after the employee returns to work, the employer has the right to withhold the difference between the amount of the travel advance payment issued and the documents confirming the expenditure of funds only partially or not specified in Art. 168 of the Labor Code of the Russian Federation to special purposes. But this is possible provided that within three working days from the moment of returning from a business trip to work, the employee not only did not report to the employer about the fully spent amounts of the advance payment, but also did not voluntarily return its unused portion. Then, within a month, the employer must find out from the employee whether there is no doubt for him the basis and amount of the deduction that the employer intends to make from his next salary. If the employee does not give written confirmation of consent with both the reason and the amount of withholding of this supposedly his debt, the employer will have to fulfill his claims for a certain amount through the court, which, as it turned out, in the employment relationship did not receive a logical conclusion.
From the established practice for this type of deduction, it follows that if an advance report on a business trip has been approved, it is possible to recover any amounts related to it from the employee only by a court decision and provided that after the approval of this report, abuses of the right and ( or) falsification of documents by the employee.
However, speaking of other cases contained in para. 3 h. 2 tbsp. 137, which indicates an unlimited number of reasons for which the legislator relates the issuance of an advance by an employer to an employee, in particular, transferred to another job in another locality, it should be noted that there is no legitimate opportunity to determine the time of an advance payment not returned in time. Consequently, there is no legal opportunity to withhold within a month from the employee’s salary the sums that he didn’t spend to pay off his debts to the employer, which was formed due to this type of advance not returned voluntarily. By the way, Art. 169 of the Code does not oblige the employee to voluntarily return such an advance, as does not oblige him and establish a term for the return in a contractual manner. Everything else, it is not docked with Art. 137, since in it the employee’s move to work in another locality is not connected with his performing there only another, and not any work. Moreover, the frequent use of the words “other work” in the Labor Code of the Russian Federation in various contexts requires their separate explanation for specific Code norms (the word “other” in its main meaning has the meaning “different than it is, not the same”). In connection with this clarification, moving to work in another locality formally excludes the possibility for an employee to perform work similar to the one previously performed by him in a new locality, which literally limits the cases of issuing this type of advance payment.
Subject to a negative assessment and the legislator does not indicate the specific reasons for the employee to move to another locality, which are associated with advance payments, as these reasons are heterogeneous. So, the move may be associated with the transfer of the employee to work in another locality together with the employer (Article 72.1 of the Labor Code of the Russian Federation), with the dismissal of the employee on appropriate grounds and his choice of a vacancy in other locations, if this is provided for in a collective agreement, agreements, labor agreement ( Articles 74, 76 and many other articles of the Code). In addition, it can be a move in the order of the so-called organized recruitment (Article 324 of the Labor Code of the Russian Federation), etc.
Analysis of the paragraph of the fourth part of Article 2 137 Labor Code of the Russian Federation
Paragraph 4 part 2 of article 137 allows deduction from the employee’s salary to pay off his debts to the employer and to return the amounts that have been excessively paid to the employee as a result of accounting errors, as well as the amounts that have been excessively paid to the employee if ORITS has admitted the employee’s guilt of not fulfilling labor standards (part 3 of article 155) or simple (Part 3 of Art. 157). Analysis of the content of the norms that collectively determine the rules of deduction from the salary based on para. 4 allows us to say: almost all the problems characteristic of retention on the basis of part 2 of art. 137 are inherent in this case.
In the studied relevant acts of the period specified in Part 3 of Art. 137, no, and the employee can repay these debts in a time not limited by law if the employer does not convince him of the determination of such a period in a special written agreement. Thus, we can once again state: the employer does not have a legal opportunity to withhold the amount from the employee’s salary within a month to pay off his debts resulting from overpaid amounts as a result of either accounting errors by the accountant or the computer operator that were not detected by the employer in a timely manner the employee’s guilt of non-compliance with labor standards and (or) the occurrence of downtime.
Attention is drawn to the legal depravity of retention due to a counting error committed actually by the employer. After all, the reason for this type of retention is the fault of the employer's representatives, and for some reason the employee must pay for it. This norm ignores the basic principle of law, such as justice: the employee could spend some amount, not knowing that he received it unnecessarily. Consequently, he really can’t refund precisely those banknotes that were unnecessarily issued to him, he will refund only his other money, which constitutes his legitimate earnings. In such cases, it would be fair to put this type of overpaid amounts on a par with overpaid payments due to improper application of labor legislation or other regulatory legal acts containing labor law norms. An example of such an error can be an excessively accrued amount due to improper use by the accounting department of the Bonus Regulation. However, in this case, according to Part 4 of Art. 137 liability in the form of compensation for damage to the organization lies with the guilty employee, attributable to the administration of the employer.
There are also ambiguities in the deduction (refund) of the amounts excessively paid to the employee in the event that ORITS recognizes his guilt in failure to comply with labor standards (part 3 of article 155) or downtime (part 3 of article 157). In h. 3 Article. 155 it is determined that in case of non-compliance with labor standards, non-fulfillment of labor (official) duties due to the fault of the employee, payment of the standardized part of the salary is made in accordance with the amount of work performed. In turn, in accordance with Part 3 of Art. 157 downtime due to the fault of the employee is not paid. Moreover, the employee is obliged to inform his immediate supervisor, another representative of the employer, about the onset of downtime caused by equipment breakdown and other reasons that make it impossible for the employee to continue his labor function (part 4 of article 157). If the employee has not informed about his downtime, then, being, for example, a shareholder or a lump sum paid employee, he will not receive compensation for the time lost, therefore, keeping silent about the downtime is not in his interests. This means that silence about downtime is beneficial only to an employee who is on a salary or time rate. However, even in this case, if his work is connected with quantitative, and not only qualitative indicators, its volume per day (shift) will not be equal to the volume at a normal working day (shift) even in the absence of a normalized task, which should not be left without an assessment with side of the employer's administration.
Thus, only from the moment the employer representatives fix both the non-fulfillment of labor standards and the onset of employee downtime, these documented facts can be recognized as grounds for not charging the normalized part of the salary. Then, a clarification procedure will be required, due to whose negligence, the guilt of specific individuals in the onset of these events from the moment of their occurrence until the full payment of wages to the employee was not established. Moreover, there is no definition of the concept of “standardized part of salary” in the Labor Code of the Russian Federation, as in other existing labor acts, which immediately precludes the possibility of unambiguous understanding and application of this rule. For example, in the absence of an indication in Art. 155 it is impossible to talk about the need for a worker to have a normalized task in such cases about non-fulfillment of labor standards, in particular production or time standards, and all the more about non-fulfillment of labor standards by a salary worker (Articles 160 and 163). Therefore, part 3 of article 155, which contains unclear provisions, is a potential source of disagreement between the employee and the employer.
So, while withholding debt under para. 4 h. 2 tbsp. 137 many practical questions arise, both related to determining the employee's guilt in paying him excessively accrued amounts, and with the actions of the employer with the aim of returning them. The legislator makes the return of excessively paid amounts dependent on the decision of ORITS, i.e. from acknowledging the guilt of the employee in the onset of these events either by the labor dispute committee (hereinafter - the CCC), or by the court. But the CCC is not authorized by the legislator to disassemble the employer's appeals (Article 385 of the Labor Code of the Russian Federation), and the court considers the employer's statements arising from the employment relationship only on the issue of compensation by the employee for damage to property in the area of \u200b\u200bresponsibility of the employer (Article 238, 248, 391 and 392 of the Labor Code of the Russian Federation).
Therefore, in order to restore justice, the employee himself (!) Must apply to ORITS with a statement on the recognition of his guilt or in committing wrongful acts. Therefore, either the employee's debts must be recognized as one of the types of property of the employer in Sec. 39 of the Labor Code of the Russian Federation (as it was earlier in the Labor Code), or this type of deductions, which does not have a logically completed legal mechanism for recovering funds that were excessively paid to an employee, is not suitable for actual use in practice. Then the question arises, which remains unanswered in the Labor Code of the Russian Federation: what is the legal way for the employer to protect his interests and rights in cases related to Art. 137? To get out of this situation, the employer will have to rely not on the Labor Code of the Russian Federation, but on general legal approaches to cases of protection of violated rights when applying to the court. As you know, the Supreme and Constitutional Courts of the Russian Federation by interpreting Art. Art. 8, 34 and 46 of the Constitution of the Russian Federation concluded: in accordance with the principle of equal legal protection, not only citizens, but also organizations have the right to defend their interests in a judicial proceeding without any restrictions.
Analysis of the paragraph of the fifth part of Article 2 137 Labor Code of the Russian Federation
The analysis of the content of the rules, which together determine the rules of deduction from the salary on the basis of para. 5 h. 2 tbsp. 137, allows you to say: this case is an exception to the rule contained in part 3 of the article in question. But first, recall the mechanism for regulating the employee debt retention procedure set forth in paragraph. 5 hours. 2. So, deductions from the employee’s salary to pay off his debts to the employer can be made upon dismissal of the employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of paragraph 1 of Art. 77, paragraphs 1, 2 and 4 parts 1 of art. 81, as well as paragraphs 1, 2, 5, 6 and 7 hours. 1 Article. 83 of the Labor Code of the Russian Federation.
From the foregoing, it follows that upon dismissal of an employee on all other (not excluded from the general rules) grounds provided for in the Labor Code of the Russian Federation or other federal laws, the employer has the right to withhold the amount of debt from the funds that are due to the employee “for settlement”, but proportional to the days he has not worked of all the vacations he received in advance. In para. 5 h. 2 tbsp. 137 the legislator did not specify the types of vacations used by the employee in advance, but summarized them with the concept of "annual paid leave". According to Art. 120 of the Code, the duration of annual paid leave is determined by summing up the main and all additional paid holidays due to the employee calculated in calendar days, and is not limited to the maximum limit.
Thus, the leave granted to an employee before dismissal may look, for example, as a set of vacations for different working years that the employee was able to use only partially in connection with his withdrawal from vacation, and deductions, as is known, are contrary to common sense (Article 125 of the Labor Code of the Russian Federation). This may be an extended vacation due to joining the next, but advance, vacation of the transferred vacations not used by the employee for the past years (Article 124). Any combinations significantly complicate the possibility of returning paid vacation funds not worked out by the employee to the employer, taking into account the instructions of art. 137; only deduction from the salary, the composition of which is defined in Part 1 of Art. 129. But, as you know, the composition of the “calculated” payment can be much wider than the composition of the salary, which requires further clarification by the legislator of the possibility of applying for other payments to withhold the employee's debt upon dismissal.
Nevertheless, the employer, making the final calculation upon the dismissal of the employee, has the right to withhold amounts in proportion to any vacation not worked out, but fully paid. For these purposes, the calculation of the time worked by a particular employee in a working year with a given employer is carried out on the basis of the provisions of Art. 121, which defines the rules for calculating length of service, which gives the right to annual paid basic and additional leave.
Unlike the rules that apply to para. 2 - 4 hours. 2 tbsp. 137, withholding in the case referred to in para. 5 part 2 of this article (refund of amounts for unworked vacation days) is not limited either by the terms or by observing the procedure for contesting the grounds and the size of this type of deduction. In addition, this type of deduction can be made at one time or with installment payments in the period of dismissal of an employee, regardless of what part of the salary remains after all other recoveries from him. At the same time, the amount of the collection itself and withholding is limited only by the amount proportional to the payment of the days of advance vacations not worked out in connection with the dismissal. However, as a rule, this amount is not enough to pay off the employee’s debt in full. Moreover, in the amount "for the calculation" received upon dismissal immediately after used, especially the total vacation, the salary component may be close to zero, and from other payments due to the employee at this time, it is impossible to formally withhold payments.
So, the Labor Code of the Russian Federation does not provide for the provision of annual paid leave in proportion to the time worked by the employee. And even, moreover, allows the provision of such leave in advance, including for the first year of work before and after six months (parts 2 and 3 of article 122). The duration of such leave is established by law and other acts for both the main and all additional holidays due to the employee with payment in the amount specified in art. 139 size. Therefore, in any case, based on the rules of Art. Art. 114 - 116 and 120 employees are granted annual paid leave of a specified duration and with the preservation of average earnings, which on the basis of Part 9 of Art. 136 is also paid in advance, namely no later than three days before its start.
Based on the foregoing, this norm cannot be considered justified: after all, in this case, the employee has not yet “earned” a vacation. Then why should he be paid in full? This outdated norm of the legislation also gives rise to the problems referred to in the analyzed paragraph. 5 h. 2 tbsp. 137. Based on the analysis of the relevant regulatory legal acts on the competencies of the CCC, the court, the prosecutor's office and the labor inspectorate, the following conclusion can be drawn. An employee can apply for the restoration of his right to timely and full payment of a fair salary to any specified body, and the employer does not have such an opportunity to withstand employee debts on the basis of the Labor Code of the Russian Federation.
To summarize, we note the following. In the Labor Code of the Russian Federation and the accompanying it in the regulation of the procedure for withholding arrears from employee salaries, other regulatory legal acts do not contain comprehensive answers to the complex practical issues discussed above. At the same time, based on the analysis, it is clear that an unambiguous rule must be introduced into the Code, according to which the employer has the right to sue the employee to recover amounts of debt arising from the grounds of Art. 137, if the possibility of its repayment from the salary in the indisputable order provided for by the current labor legislation is excluded. Therefore, in order to correct the situation, it must be recognized: debts not paid by the employee upon dismissal are an independent type of damage caused to the employer, since non-repayment of debts actually reduces the size of his property. To do this, you must at least make the appropriate additions and changes to Part 2 of Art. 238, part 1 of article 243 of the Labor Code of the Russian Federation.
V.V. Arkhipov
Docent
Department of Labor Law
and social security rights
Faculty of Law
Academy of Labor and Social Relations
Signed to print
18.05.2009

 

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